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PRIVATE  LIBRARY 


HARRY  P.  HERDMAN, 

ZANESVILLE,   OHIO. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesonlawofdamaOOmech 


CASES 


ON    THE 


LAW  OF  DAMAGES 


's  .9> 


SELECTED  BY 

FLOYD    R.  MECHEM 

Author  of  Mechem  on  Agency,  etc.,  Tappan  I'rofessor 
of  Law  in  the  University  of  Michigan 


SECOND   EDITION 


St.  Paul,  Minn. 
WEST   PUBLISHING   CO. 

1898 


COPYIUGHT,   1898, 
BY 

WEST  PUBLISHING  COMPANY. 


NOTE. 


The  following  selection  of  cases  in  the  law  of  Damages  has  been 
made  primarily  for  use  in  connection  with  the  lectures  upon  that 
subject  given  in  the  Law  Department  of  the  University  of  Michigan. 
The  purpose  has  been  partly  to  supply  illustrations  of  the  applica- 
tion of  principles  referred  to  in  the  lectures,  and  partly  to  supplement 
the  lectures  by  rounding  out  the  view  of  certain  fields  not  otherwise 
completely  developed. 

Arbitrary,  but  inexorable,  considerations  of  size  and  price  have 
determined  the  scope  of  the  selection;  and,  for  reasons  perhaps  suf- 
ficiently obvious,  preference  has  been  given,  when  possible,  to  cases 
which  have  appeared  in  the  National  Keporter  System.  It  is,  how- 
ever, due  to  the  publishers  to  say  that,  with  respect  to  both  of  the 
considerations  above  mentioned,  their  attitude  has  been  constantly 
generous. 

The  cases,  as  a  rule,  are  not  annotated,  and  they  have  usually  been 
reproduced  entire,  although  some  parts  of  them  may  not  be  germane 
to  the  subject  of  Damages.  F.  B.  M. 

UNIVERSITY  OF  MICHIGAN, 
Ann  Arbor,  November  1,  1898. 

(ill) 


TABLE  OF   CONTENTS. 


I.  NOMINAL  AND  SUBSTANTIAIi 

DAMAGES. 

Page 

Webb  V.  Portland  Mfg.  Co 3 

Paul   V.   Slasoii !  .  .  8 

Wartman   v.    Swindell 12 

Dayton  v.  Parke 13 

Jones  V.  King 14 

II.  COMPENSATORY   AND   EXEM- 

PLARY DAMAGES. 

Spokane  Truck  &  Dray  Co.  v.  Hoefer 16 

Lucas  V.  Michigan  Cent.  R.  Co 20 

Chellis  V.   Chapman 22 

Mclntyre  v.  Sholty 2."5 

Sheik   V.    Hobson 27 

^Lake  Shore  &  M.  S.  R.  Co.  t.  Prentice.  ..  28 

'Goddard  v.  Grand  Trunk  Ry.  of  Canada.  .  34 

Wheeler  &  Wilson  Mfg.  Co.  v.  Bovce .5() 

Louisville  &  N.  R.  Co.  v.  Ballard 59 

Southern  Kansas  R.  Co.  v.  Rice 61 

Hansley  v.  Jamesville  &  W.  R.  Co 64 

Stacy  V.  Portland  Pub.  Co 68 

III.    GENERAL    AND    SPECIAL 
DAMAGES. 

Stevenson  v.   Smith 70 

Wabash  Western  Rj*.  Co.  v.  Friedman...  71 

Heister  v.  Loomis 75 

Svendsen  v.  State  Bank  of  Duluth 77 

IV.  PRESENT    AND    PROSPECTIVE 

DAMAGES. 

National  Copper  Co.  v.  [Minnesota  Min.  Co.  78 

Darley  Main  Colliery  Co.  v.  Mitchell 83 

Joseph  Schlitz  Brewing  Co.  v.  Compton...  92 

Uline  V.  New  York  Cent.  &  H.  R.  R.  Co..  .  96 

Stodghill  V.  Chicago.  B.  &  Q.  R.  Co Ill 

Filer  v.  New  York  Cent.  R.  Co 113 

Parker  v.  Russell 114 

V.  DIRECT   AND    CONSEQUENTIAL 

DAMAGES. 

1.   luL  Contract. 

Hadley   v.   Ba.Kendale 116 

Cory  V.  Thames  Ironworks  &  Shipbuilding 

Co 119 

Home  V.  Midland  Ry.  Co 124 

Griftin  v.  Colver 126 

Leonard   v.    New    York,    A.   &   B.    Blectro- 

:Magnetic  Tel.   Co 129 

Booth  V.  Spuyten  Duyvil  Rolling-Mill  Co.  .   132 

Mather  v.  American  Exp.  Co 135 

Abbott  v.   Hapgood 136 

Brownell  v.   Chapman 139 

Masterton  v.  Mayor,  etc.,  of  City  of  Brook- 
lyn    141 

Sherman  Center  Town  Co.  v.  Leonard 147 

Thomas.   Badgley  &  W.   Mfg.   Co.  v.  Wa- 
bash, St.  L.  &  P.  Ry.  Co 149 

Brigham  v.  Carlisle 152 

Hitchcock  V.  Suitrcme  Tent  of  Knights  of 
Maccabees  of  the  ^^'llrld 154 

2.    In  Tort. 

Allison   V.   Cliandler 157 

Hill  V.   Wiusor 162 


Page 

Schumaker  v.  St.  Paul  &  D.  R.  Co 163 

Vosburg  V.  Putney 165 

Tunnicliffe  v.  Bay  Cities  Consol.  Ry.  Co.  .  167 

McNamara  v.  Village  of  Clintonville 169 

.Western  Railway  of  Alabama  v.  Mutch...  172_ 

Cliamberlain  v.  City  of  Oshkosh 175 

Blvthe  V.  Denver  &  R.  G.  Rv.  Co 178 

Haverly  v.  State  Line  &  S.  R.  Co 180 

Lewis  v.  Flint  &  P.  M.  Ry.  Co 182 

AVood  v.  Pennsylvania  R.  Co 186 

Gilson  V.  Delavs^are  «&  H.  Canal  Co 189 

VI.  LIQUIDATED    AND    UNLIQUIDAT- 
ED DAMAGES. 

Keeble  v.  Keeble 192 

^Idomouth     Park    Ass'n     v.     Wallis    Iron 

Works    194 

Keck  V.  Bieber 198 

Tennessee  Mfg.  Co.  v.  James 200 

Tode  V.  Gross 202 

Condon  v.  Kemper 204 

Smith  V.  Bergengren 208 

VII.  DAMAGES      FOR     NONPAYMENT 
OF  MONEY— INTEREST. 

Bethel  v.  Salem  Imp.   Co 209 

Lowe   V.    Turpie 2i;> 

White  V.  Miller 224 

Mansfield  v.  New  York  Cent.  «fe  H.  R.  R. 

Co 227 

Sullivan  v.  McMillan 229 

Louisville  &  N.  R.  Co.  v.  Wallace 233 

Wilson  V.  City  of  Troy 235 

V  ■ 

VIII.  DAMAGES      FOR      BREACH      OF 
CONTRACTS  RESPECTING  PER- 
SONAL  PROPERTY. 

(a)  Breach    of    Agreement   to    Supply 
Goods. 

Trigg  V.   Clay 239 

Jordan    v.   Patterson 242 

Lawrence  v.  Porter 24(> 

Hoffman   v.    Chamberlain 250 

Berkey  &  Gay  Fm-uiture  Co.  v.  Hascall.  ..  252 

Barnes  v.  Brown 255 

(b)  Breach   of  Warranty  of   Quality. 

Beeman  v.  Banta 259 

Shaw  V.   Smith 2r,(t 

(e)    Breach  of  Agreement  to  Take  or  Buy 
Goods. 

Shawhan  v.  Van  Nest 262 

Kadish   v.    Young 265 

Hosmer.  v.  Wilson 269 

Hincklev  v.  Pittsburgh  Bessemer  Steel  Co.  272 


IX. 


DAMAGES  FOR  BREACH  OF  CON- 
TRACTS RESPECTING  REAL 
ESTATE. 


(a)    Breach   by  Vendee   of  Agreement  to 
Buy. 

I  logan  V.  Kyle 277 


LAW  DAM.2d  Ed. 


(iv) 


TAHLK  OF  CONTEXTS. 


Page 

McGuiniiess   v.    WIkiIcu 280 

Allen  V.   Molin 281 

(b)    Breacli  by  Vendor   of  Agreement  to 
Sell  and  Convey. 

Flureau  v.   Tliurnhill 282 

Hopkins  V.   Lee 283 

Piinipolly  V.    I 'helps 286 

(c)    Breach   of   Vendor's   Covenants. 

Pitcher   v.    Liviiif;slon 288 

Brofiks  V.  Black 29.") 

Guthrie  v.  liussell 298 

(d)    Breach,  of   Landlord's   Covenants. 

I'oposkey  v.   Munkwitz. 'MM) 

Cohn    V.    Norton 'MC> 

Knowles   v.    St(H>le .">US 

^I.vers  V.  Bnrns ;>10 

Pisher  v.  (ioebel .'>12 

(e)    Breach    of   Tenant's    Covenants. 

Watriss  v.   First  Nat.   Bank  of  Cambridge  313 

X.  DAMAGES   FOR  BREACH   OF   CON- 

TRACTS RESPECTING  PER- 
SONAL SERVICE. 

(a)    Damages   in   Actions   against 
E\nployer. 

8utiierlaud  v.  Wver 314 

Liddell  V.  Chide.ster 316 

Mc]\Inl]en  v.  Dickinson  Co 31S 

( )lmstead    v.    Bach 320 

Boland  v.  (Tlendale  Quarrv  Co 324 

•■^Stark  V.   Parker 326 

Britton    v.    Turner 321) 

(b)  Damages  in  Actions  against  Employe. 

Swift  V.  Harrinian .333 

-Macy  V.  Peach 334 

■/ 

XI.  DAMAGES   IN   ACTIONS   AGAINST 

CARRIERS. 

(a)    Carriers  of  Goods. 

Harvey  v.  Connecticut  &  P.  R.  K.  Co 336 

Ward's    Central    &    Pacific    Lake    Co.    v. 

Elkins    338 

Devereux  v.  Buckley 33!) 

Mc(Tre,sor  v.  Kilgore 341 

(b)    Carriers  of  Passengers. 

Brown  v.  Chicago.  M.  &  St.  P.  Rv.  Co...   343 

MacKay  v.  Ohio  River  R.  Co 350 

Ellsworth  V.  Chicago,  B.  &  Q.  Ry.  Co.  . . .   353 

XII.  DAMAGES  IN  ACTIONS  AGAINST 

TELEGRAPH    COMPANIES. 

Primrose  v.   We.'^tern   Union  Tel.  Co 357 

Western  Union  Tel.  Co.  v.  Wilson 368 

'First  Nat.  Bank  of  Barnesville  v.  Western 

Union  Tel.   Co 372 

Conuell  V.  Western  Union  Tel.  Co 375 

a 


XIII.    DAMAGES  FOR  CAUSING 
DEATH. 

Page 
Dwyer  v.   Chicago.    St.   P.,    M.   &   O.   Ry. 

Co 380 

Morgan  v.  Southern  Pac.  Co 382 

Deniarest  v.  Little 385 

XIV.    DAMAGES  FOR  INJURIES  TO 
PROPERTY. 

(a)    Injuries  to  Real  Property. 

Dwight  V.  Klmira,  C.  &  N.  R.  Co .387 

Bcede  v.   Lamprey 389 

(iaskins  v.   Davis 392 

Omaha   &  Grunt   Smelting  «&  Refining  Co. 

V.  Tabor   394 

E.    E.    Bolles   Woodenware   Co.    v.    United 

States    400 

(b)    Injuries  to  Personal  Property. 

Griggs  V.   Day 402 

Dimock  v.  United  Stal(>s  Nat.  Bank 405 

Ellis  V.  Hilton 409 

r  Silsbury  v.  McCoon 410 

Clement  v.  Duffy 414 

Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Penin- 
sular Land,  Transportation  &  Manufac- 
turing Co 416 

XV.    DAMAGES    FOR   PERSONAL 
INJURIES. 

Linsley  v.  Bushnell 422 

Goodhart  v.  Pennsylvania  R.  Co 425 

Larson   v.    Chase 428 

SloaneV.  Southern  Cal.  Rv.  Co 430 

Mitchell  V.  Rochester  Ry.  Co 435 

Turner  v.  Great  Northern  Ry.  Co 436 

Summerfield   v.   Western  Union  Tel.    Co.  .   440 

Malionev, V.  Bolford 443 

Cahill   V.  Murphy 444 

XVI.    AGGRAVATION     OF     DAMAGES. 

Havner  v.  Cowden 446 

Bennett  v.  Hyde 448 

Johnson  v.  Smith 449 

Beck  V.  Dowell 450 

XVII.    MITIGATION   OF   DAMAGES. 

Goldsmith's  Adm'r  v.  Joy 4.52 

Ward  V.  Blackwood 456 

Sickra    v.    Small 457 

Callahan  v.  Ingram 4.59 

Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Snyder.  .  464 

Bunting  v.  Hogsett 466 

Carpenter  v.  American  Bldg.  &  Loan  Ass'n  467 
Wright  V.  Bank  of  the  Metropolis 469 

XVIII.  EXCESSIVE  OR  INSUFFICIENT 
DAMAGES. 

Baltimore  &  O.  R.  Co.  v.  Carr 474 

Limburg  v.  German  Fire  Ins.  Co.  of  Peoria  477 

Robinson  v.  Town  of  Waupaca 478 

Carter  v.  Wells,  Fargo  «fc  Co 479 

Peterson  v.  Western  Union  Tel.  Co 480 

Louisville  S.  R.  Co.  v.  Minogue 482 

Retan  v.  Lake  Shore  &  M.  S.  Ry.  Co 484 


CASES   REPORTED. 


Page 
Abbott  V.    Hapgood    (22   N.   E.   907,    150 

Mass.  248) 136 

Allen  Y.  Molin  (49  N.  W.  52,  86  Mich,  328)  281 
Allison  V.  Chandler  (11  Mich.  542) 157 

Baltimore  &  O.  R.   Co.  v.  Carr  (17  Atl. 

1052,  71  Md.  135) 474 

Barnes  v.  Brown  (29  N.  E.  760,  130  N.  Y. 

372)   255 

Beck  V.  Dowell  (20  S.  W.  209,  111  Mo.  506)  450 
Beede  v.  Lamprey  (15  Atl.  luo,  64  N,  H. 

510)  389 

Beeman  v.  Banta  (23  N.  E.  887,  118  N.  Y. 

538)    25'J 

Bennett  v.  Hyde  (6  Conn.  24) 448 

Berkey  &  Gay  Furniture  Co.  v.  Hascall 

(24  N.  E.  336,  123  Ind.  502) 252 

Bethel  v.  Salem  Imp.  Co.  (25  S.  E.  304,  93 

Ya.  354)  ,.209 

Blythe  v.  Denver  &  K.  G.  By.  Co.  (25  Pac. 

702,   15   Colo.   333) 178 

Boland  v.  Glendale  Quarry  Co.  (30  S.  W. 

151,   127   Mo.   520) 324 

Bolles  Wooden  "S^'are  Co.  v.  United  States 

(1  Sup.  Ct.  398,  106  U.  S.  432) 400 

Booth  V.  Spuyten  Duyvil  Rolling  Mill   Go. 

(00  N.  Y.  489) 132 

Brisham  v.  Carlisle  (78  Ala.  243) 152 

Britton  v.  Turner  (6  N.  H.  481) 329 

Brooks  V.  Black  (8  South.  332,  68  Miss. 

161)   295 

Brown  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (11 

N.  W.  356,  911,  54  Wis.  342) 343 

Brownell  v.  Chapman  (51  N.  W.  249,  84 

Iowa,  504) 139 

Bunting  v.  Hogsett  (21  Atl.  33,  139  Pa. 

St.  363) 466 

Cahill  V.  Murphy  (30  Pac.  195,  94  Cal.  29)  444 
Callahan  v.  Ingram  (26  S.  W.  1020,  122 

Mo.  355) 459 

Carpenter    v.    American    Bldg.    &    Loan 

Ass'n  (56  N.  W.  95,  54  Minn.  403) 467 

Carter  v.  Wells,  Fargo  &  Co.  (64  Fed.  1005)  479 
Chamberlain  v.  City  of  Oshkosh  (54  N.  W. 

018.  84  Wis.  289) 175 

Chellis  V.  Chapman  (26  N.  E.  308,  125  N. 

Y.  214) 22 

Clement  v.  DufiEy  (7  N.  W.  85,  54  Iowa, 

632)   414 

Cohn  V.  Norton  (18  Atl.  595,  57  Conn.  480)  305 
Condon  v.  Kemper  (27  Pac.  829,  47  Kan. 

126) 204 

Connell  v.  Western  Union  Tel.  Co.  (22  S. 

W.  845.  116  Mo.  34) 375 

Cory  V.  Thames  Ironworks  &  Shipbuild- 
ing Co.  (L.  R.  3  Q.  B.  181) 119 


Page 
Darley  Main  Colliery  Co.  v.  Mitchell  (11 

App.  Cas.  127) 83 

Dayton  v.  Parke  (37  N.  E.  642,  142  N.  Y. 

391)   13 

Demarest  v.  Little  (47  N.  J.  Law,  28) 385 

Devereux  v.  Buckley  (34  Ohio  St.  16) 339 

Dimock  v.  United  States  Nat.  Bank  (25 

Atl.  926,  55  N.  J.  Law,  296) 405 

Dwight  V.  Elmira,  C.  &  N.  R.  Co.  (30  N. 

E.  398,  132  N.  Y.  199) 387 

Dwyer  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co. 

(51  N.  W.  244,  84  Iowa,  479) 380 

E.  E,  Bolles  Wooden  Ware  Co.  v.  United 
States  (1  Sup.  Ct.  398,  100  U.  S.  432).  . .  400 

Ellis  V.  Hilton  (43  N.  W,  1048,  78  Mich. 
150)    409 

Ellsworth  V.  Chicago,  B.  &  Q.  Ry.  Co.  (63 

N.  W.  584,  95  Iowa,  98) 353 

• 

Filer  v.  New  York  Cent.  R.  Co.  (49  N.  Y. 
42)   113 

First  Nat.  Bank  of  Barnesville  v.  Western 

Union  Tel.  Co.  (30  Ohio  St.  555) 372 

Fisher  v.  Goebel  (40  Mo.  475) 312 

Flureau  v.  Thornhill  (2  W.  Bl.  1078) 282 

Gaskins  v.  Davis  (20  S.  E.  188,  115  N.  C. 

85)  392 

Gilson  V.  Delaware  &  H.  Canal  Co.   (26 

Atl.  70,  65  Vt.  .213) 189 

Goddard  v.  Grand  Trunk  Ry.  of  Canada 

(57  Me.  202) 34 

Goldsmith's  Adm'r  v.  Joy  (17  Atl.  1010,  61 

Vt.  488) 452 

Goodhart  v.  Pennsylvania  R.  Co.  (35  Atl. 

191,  177  Pa.  St.  1) 425 

Griffin  v.  Colver  (16  N.  Y.  489) 126 

Griggs  V.  Day  (32  N.  E.  612,  136  N.  Y.  152)  402 
Guthrie  v.  Russell  (46  Iowa,  269) 298 

Hadley  v.  Baxendale  (9  Exch.  341) 116 

Hansley  v.  Jamesville  &  W.  R.  Co.  (23  S. 

E.  443,  117  N.  C.  565) 64 

Harvey  v,  Connecticut  &  P.  R.  R.  Co.  (124 

Mass.  421) 33G 

Haverly  v.  State  Line  &  S.  R.  Co.  (19  Atl. 

1013,  135  Pa,  St.  50) 180 

Hayner  v..  Cowden  (27  Ohio  St.  292) 446 

Heister  v.  Loomis  (10  N.  W.  60,  47  Mich. 

16)   75 

Hill  V.  Winsor  (118  Mass.  251) 162 

Hinckley  v.  Pittsburgh  Bessemer  Steel  Co. 

(7  Sup.  Ct.  875,  121  U.  S.  264) 272 

Hitchcock  V.  Supreme  Tent  of  Knights  of 

Maccabees  of  the  World  (58  N.  W.  640, 

100  Mich.  40) 154 


LAW  DAM.2d  Ed. 


(Vi) 


CASES  REPORTED. 


Page 
Hoffman  v.  Chamberlain  (5  Atl.  150,  40  N. 

J.  Eq.  ()().3) 250 

Hogau  V.  Kyle  (35  Pac.  809.  7  Wash.  595)  277 

Hopkuis  V.  Lee  (0  Wheat.  KIO) 283 

Horne  v.  Midland  Ky.  Co.  (L.  K.  7  C.  P. 

.-)S3)    124 

Hosmer  v.  Wilson  (7  :Mich.  204) 2r.9 

JacksouviUe,  T.  &  K.  W.  lly.  Co.  v.  Penin- 
sular Land,  Transp.  &  Mlg.  Co.  (0  South. 

661,  27  Fla.  1) 410 

Johnson  v.  Smith  (64  Me.  553) 440 

Jones  V.  King  (33  Wis.  422) 14 

Jordan  v.  Patterson  (35  Atl.  521,  67  Conn. 

473.    242 

Joseph  Schlitz  Brewing  Co.  v.  Compton  (32 
N.  E.  603,  142  111.  511) 92 

Kadish  v.  Young  (108  111.  170) 265 

Keck  V.  Bieber  (24  Atl.  170.  148  Pa.  St. 

645)  198 

Keeble  v.  Keeble  (5  Soutli.  149.  85  Ala. 

552)    192 

Knowles  v.  Steele  (61  N.  W.  557) 3U8 

Lake  Shore  &  M.  S.  By.  Co.  v.  Prentice 

(13  Sup.  Cr.  261,  147  V.  S.  101) 28 

Larson  v.  Chase  (50  N.  W.  238,  47  Minn. 

307)    428 

Lawrence  v.  Porter  (11  C.  C.  A.  27,   63 

Fed.  62.  and  22  U.  S.  App.  483) 246 

Leonard  v.  New  York.  A.  &  B.  Electro- 

Maguetic  Tel.  Co.  (41  N.  Y.  544) 129 

Lewis  V.  Flint  &  P.  M.  By.  Co.  (19  N.  W. 

744.  54  :Mich.  55) 182 

Liddell  v.  Cliidester  (4  South.  426,  84  Ala. 

.">08)    316 

Limburg  v.  German  Fire  Ins.  Co.  of  Peo- 
ria (57  N.  W.  626,  90  Iowa.  709) 477 

Linsley  v.  Bushnell  (15  Conn.  225) 422 

LonisviUe,  N.  A.  &  C.  By.  Co.  v.  Snyder 

(20  X.  E.  284,  117  Ind.  435) 464 

Louisville  S.  B.  Co.  v.  .Minogue  (14  S.  W. 

357.  90  Ky.  369) 482 

Louisville  &  N.  B.  Co.  v.  Ballard  (3  S.  W. 

530,  85  Ky.   307) 59 

Louisville  &  N.  B.  Co.  v.  Wallace  (17  S. 

W.  882,  91  Tenn.  3.5) 233 

Lowe  v.  Turpie  (44  N.  B.  25.  147  Ind.  652)  213 
Lucas  V.  Michigan  Cent.  B.  Co.  (.'>6  N.  W. 

1039,  98  Mich.  1) 20 

McGregor  v.  Kilgore  (6  Ohio,  359) 341 

McGulnness  v.  AA  haleu  (18  Atl.  158,  16  B. 

I.   558) 280 

Mclutyre  v.  Sholty  (13  N.  E.  239.  121  111. 

660)    25 

MacKay  v.  Ohio  luver  B.  Co.   (11  S.  E. 

737,  34  W.  Va.  65) 350 

McMuUen  v.  Dickinson  Co.  (62  N.  W.  120, 

60  Minn.  156) 318 

McXamara  v.  Village  of  Clintonville  (22 

N.  W.  472.  (V2  AVi&\  207) 169 

Macy  V.  Peach  (44  Pac.  687,  2  Kan.  App. 

575)    334 

Mahoney  v.  Belford  (132  Mass.  393)....  443 


Page 

Mansfield  v.  New  York  Cent.  &  H.  B.  B. 
Co.  (21  N.  E.  735,  114  N.  Y.  331) 227 

Masterton  v.  Mayor,  etc.,  of  City  of  Brook- 
lyn (7  Hill,  61) 141 

Mather  v.  American  Exp.  Co.  (138  Mass. 
55)    135 

Mitchell  V.  Bochester  By.  Co.  (45  N.  E. 
354,  151  N.  Y.  1(J7) 435 

Monmouth  Park  A.ss'n  v.  Wallis  Iron 
Works  (26  Atl.  140,  55  N.  J.  Law,  132).  .   194 

Morgan  v.  Southern  Pac.  Co.  (30  Pac.  603, 
95  Cal.  510) 382 

Myers  v.  Burns  (35  N.  Y.  269) 310 


National   Copper   Co.    v.   Minnesota    Min. 
Co.  (23  N.  W.  781,  57  Mich.  83) 


78 


Olmstead  v.  Bach  (27  Atl.  501,  78  Md.  132)  320 
Omaha  &  Grant  Smelting  &  Beflning  Co. 
v.  Tabor  (21  Pac.  925,  13  Colo.  41) 394 

Parker  v.  Kussell  (133  Mass.  74) 114 

Paul  v.  Sla^on  (22  Vt.  231) 8 

Peterson  v.  Western  Union  Tel.  Co.  (67  N. 

W.  646,  65  Minn.  18) 480 

Pitcher  v.  Livingston  (4  Johns.  [N.  Y.]  1)  288 
Poposkey  v.  Munkwitz  (32  N.  W.  35.  68 

Wis.  322) 300 

Primrose  v.  Western  Union  Tel.  Co.   (14 

Sup.  Ct.  1098,  154  U.  S.  1) 357 

Pumpelly  v.  Phelps  (40  N.  Y.  01) 286 

Betan.  v.  Lake  Shore  &  M.  S.  B.  Co.  (53 
N.  W.  1094,  94  Mich.  146) 484 

Bobinson  v.  Town  of  Waupaca  (46  N.  W. 
809.  77  Wis.  544) 478 

Schlitz  Brewing  Co.  v.  Compton  (32  N.  E. 

693.   142  ni.   511) 92 

Schumaker  v.  St.  Paul  &  D.  B.  Co.  (48  X. 

j     AV.  559,  46  Minn.  39) 163 

i  Shaw  V.  Jones  (25  Pac.  886,  887,  45  Kan. 

I     334)   260 

Shaw  V.  Smith  (25  Pac.  886,  887,  45  Kan. 

I     334)    2(30 

I  Shawhan  v.  Van  Xest  (25  Ohio  St.  490).  .  262 
I  Sheik  V.  Hobson  (19  X.  W.  875,  64  Iowa, 

146)   27 

Sherman  Center  Town  Co.  v.  Leonard  (26 

Pac.  717.  46  Kan.  354) 147 

Sickra  v.  Small  (33  Atl.  9,  87  Me.  493) . .  .  457 

Silsbury  v.  McCoon  (3  N.  Y.  379) 410 

Sloane  v.  Southern  California  By.  Co.  (44 

Pac.  320.  Ill  Cal.  668) 4.30 

Smith  V.  Bergengren  (26  X.  E.   690,   153 

Mass.  2.36) 208 

Southern  Kansas  B.  Co.  v.  Bice  (16  Pac. 

817,  38  Kan.  398) 61 

Spokane  Truck  &  Dray  Co.  v.  Hoefer  (25 

Pac.  1072.  2  Wash.  45) Ifk 

Stacy  V.  Portland  Pub.  Co.  (68  Me.  279) .  .     68 

Stark  V.  Parker  (2  Pick.  267) 326 

Stevenson  v.   Smith   (28  Cal.  10.3) 70 

Stodghill  V.  Chicago,  B.  &  Q.  B.  Co.  (5  X. 
W.  495,  53  Iowa,  341) HI 


CASES  REPORTED. 


Page 
Sullivan  v.   Mc:\Iillan  (19  South.   340,  37 

Fla.  134) 229 

Suinmei'Iield  v.  Westeru  Union  Tel.  Co.  (57 

N.  W.  973,  87  Wis.  1) 440 

Suihei-lana  v.  Wyer  (07  Me.  (>4) 314 

Svi'udsen  v.  State  Bank  of  Duluth  (05  N. 

W.  1080,  04  Minn.  40) 77 

Swift  V.  HaiTiman  (30  Vt.  007) 333 

Tennessee  Mfg.  Co.   v.  James  (18  S.  W. 

202,  91  Tenn.  154) 200 

Tliomas,  B.  &  W.  Mfg.  Co.  v.  Wabash,  St. 

L.  &  P.  Ry.  Co.  (22  N.W.  827,  02  Wis. 

042)   ...149 

Tode  V.  (I TOSS  (28  X.  E.  409,  127  N.  Y.  480)  202 
Trigg  V.  Clay  (13  S.  E.  434.  88  Va.  330) .  .  239 
Tunicliffe  v.  Bay  Cities  Consol.   Ry.   Co. 

(01  N.  W.  11,  102  Mich.  024) 107 

Turner  v.  Great  Northern  Ky.  Co.  (40  Pac. 

243,  15  Wash.  213) 43G 

Uline  V.  New  York  Cent.  &  H.  R.  R.  Co. 
(4  N.  E.  530,  101  N.  Y.  98) 90 

Vosburg  V.  Putney  (50  N.  W.  403.  80  Wis. 
523)    105 


Page 
Wabash  Western  Ry.  Co.  v.  Friedman  (30 

N.   E.  353,   34  N.   E.   1111,   and  140  111. 

583) 71 

Ward  V.  Blackwood  (41  Ark.  295) 45<) 

Ward's  Central  &  Pacific  Lake  Co.  v.  Elk- 
ins  (34  Mich.  439) 338 

Wartman  v.  Swindell  (25  Atl.  350.  54  N.  J. 

Law,   589) 12 

Watriss  v.  First  Nat.  Bank  of  Cambridge 

(130   Mass.  343) 313 

Webb  V.  Portland  Mfg.  Co.  (Fed.  Cas.  No. 

17,322,  3  Sunm.  189) 3 

Western  Railway  of  Alabama  v.   Mutch 

(11  South.  894,  97  Ala.  194) 172 

Western    Union    Tel.    Co.    v.    Wilson    (14 

South.  1.  ;!2  Fla.  527) 3(;8 

Wheeler  &  Wilson  :Mfg.  Co.  v.  Boyce  (13 

P^ic.  009.  30  Kan.  350) ,5u 

White  V.  Miller  (78  N.  Y.  393) 224 

Wilson  V.  City  of  Troy  (32  N.  E.  44.  135 

N.   Y.  90) 235 

W^iod  V.  Pennsylvania  R.  Co.  (35  Atl.  099, 

177  Pa.  St.  300) 180 

Wright  V.  Bank  of  the  Metropolis  (18  N. 

E.  79,  110  N.  Y.  237) 409 


CASES 


ON    THE 


LAW   OF   DAMAGES 


SECOND   EDITION 


LAW  i>ail2i>  bd.  (1)* 


NOMINAL.  AND  SUBSTANTIAL  DAMACxES. 


.     WEBB  V.  PORTLAND  MANUF'G  CO. 

(Fed.  Gas.  No.  17,322;  3  Sumn.  ISO.) 

U.    S.    Circuit   Court,    D.    Maine.    May    Term, 
1838. 

In  equity.    On  bill  for  in.iucction. 

Bill  ia  oquity  by  .Toslma  Webb  against 
the  Portland  Manufacturing  Company  to 
restrain  the  diversion  of  water  from  plain- 
tiff's mill.  On  the  stream  on  which  the  mill 
was  situated  were  two  dams,  the  distance 
between  which  was  about  40  or  50  rods,  oc- 
cupied by  the  mill-pond  of  the  lower  dam. 
Plaintiff  owned  certain  mills  and  mill  privi- 
leges on  the  lower  dam.  Defendants  also 
owned  certain  other  mills  and  mill  privileges 
on  the  same  dam.  To  supply  water  to  one 
of  such  mills,  defendants  made  a  canal  from 
the  pond  at  a  point  immediately  below  the 
upper  dam.  The  water  thus  withdrawn  by 
them  for  that  pui"pose  was  about  one-fourth 
of  the  water  to  which  defendants  were  en- 
titled as  mill-owners  on  the  lower  dam.  and 
was  returned  into  the  stream  immediately 
below  that  dam.  A  preliminary  question, 
suggested  by  the  court,  was  argued  on  the  bill 
and  answer. 

C.  S.  Daveis,  for  plaintiff.  P.  Mellen  and 
Mr.  Longfellow,  for  defendants. 

STORY,  J.  The  question  which  has  been 
argued  upon  the  suggestion  of  the  court  is  of 
vital  importance  in  the  cause,  and,  if  de- 
cided in  favor  of  the  plaintiff,  it  supersedes 
many  of  the  inquiries  to  which  our  attention 
must  otherwise  be  directed.  It  is  on  this  ac- 
count that  we  thought  it  proper  to  be  argued 
separately  from  the  general  merits  of  the 
cause. 
I      The   argument    for    the    defendants,    then, 

.  i  presents  two  distinct  questions.  The  first  is 
whether,  to  maintain  the  present  suit,  it  is  es- 
sential for  the  plaintiff  to  establish  any  actual 

^  damage.  The  second  is  whether,  in  point  of 
law,  a  mill-owner,  having  a  right  to  a  certain 
portion  of  the  water  of  a  sti-eam  for  the 
use  of  his  mill  at  a  particular  dam,  has  a 
right  to  draw  off  the  same  portion  or  any 
less  quantity  of  the  water,  at  a  considerable 
distance  above  the  dam,  without  the  consent 
of  the  owners  of  other  mills  on  the  same  dam. 

X  In  connection  with  these  questions,  the  point 
will  also  incidentally  arise  whether  it  makes 
any  difference  that  such  drawing  off  of  the 
water  above  can  be  shown  to  be  no  sensible 
injury  to  the  other  mill-owners  on  the  lower 
dam. 

As  to  the  first  question.  I  can  very  well 
understand  that  no  action  lies  in  a  case  where 
there  is  damnum  absque  injuria;  that  is, 
where  there  is  a  damage  done  without  any 
wrong  or  violation  of  any  right  of  the  plain- 
tiff. But  I  am  not  able  to  understand  how 
it  can  correctly  be  said,  in  a  legal  sense,  that 
an  action  will  not  lie,  even  in  case  of  a 
wrong  or  violation   of  a   right,   unless   it  Is 


followed  by  some  perceptible  damage,  which 
can  be  established  as  a  matter  of  fact;  in 
other  words,  that  injuria  sine  damno  is  not 
actionable.  See  ^Nlayor  of  Lynn,  etc.,  v. 
Mayor  of  London,  4  Term  R.  130,  141,  143, 
144;  Com.  Dig.  "Action  on  the  Case,"  B  1, 
2.    On  the  contrary,  from  my  earliest  reading, 

1  have  considered  it  laid  up  among  the  very 
elements  of  the  common  law  that  wherever 
there  is  a  wrong  there  is  a  remedy  to  redress 
it;  and  that  every  injury  imports  damage  in 
the  nature  of  it;  and,  if  no  other  damage  is 
established,  the  party  injured  is  entitled  to 
a  verdict  for  nominal  damages.  A  fortiori 
this  doctrine  applies  where  there  is  not  only 
a  violation  of  a  right  of  the  plaintiff,  but  the 
act  of  the  defendant,  if  continued,  may  be- 
come the  foundation,  by  lapse  of  time,  of 
an  adver.se  right  in  the  defendant;  for  then 
it  assumes  the  character,  not  merely  of  a 
violation  of  a  right  tending  to  diminish  its 
value,  but  goes  to  the  absolute  destruction 
and  extinguishment  of  it.  Under  such  cir- 
cumstances, unless  the  party  injured  can  pro- 
tect his  right  from  such  a  violation  by  an 
action,  it  is  plain  that  it  may  be  lost  or  de- 
stroyed, without  any  possible  remedial  re- 
dress. In  my  judgment,  the  common  law 
countenances  no  such  inconsistency,  not  to 
call  it  by  a  stronger  name.  Actual,  percepti- 
ble damage  is  not  indispensable  as  the  foun- 
dation of  an  action.  The  law  tolerates  no 
further  inquiry  than  Avhether  there  has  been 
the  violation  of  a  right.  If  so,  the  party  in- 
jured is  entitled  to  maintain  his  action  for 
nominal  damages,  in  vindication  of  his  right, 
if  no  other  damages  are  fit  and  proper  to 
remunerate  him.  So  long  ago  as  the  great 
case  of  Ashby  v.  White,  2  Ld.  Raym.  938.  6 
Mod.  45,  Holt,  524,  the  objection  was  put 
forth  by  some  of  the  judges,  and  was  an- 
swered by  Lord  Holt,  with  his  usual  ability 
and  clear  learning;  and  his  judgment  was 
supported  by  the  house  of  lords,  and  that  of 
his  brethren  overturned.  By  the  favor  of  an 
eminent  judge.  Lord  Holt's  opinion,  apparent- 
ly copied  from  his  own  manuscript,  has 
been  recently  printed.  In  this  last  printed 
opinion  (page  14)  Lord  Holt  says:  "It  is  im- 
possible to  imagine  any  such  thing  as  injuria 
sine  damno.  Evei-y  injury  imports  damage 
in  the  nature  of  it."  S.  P.  2  Ld.  Raym.  955 
And  he  cites  many  cases  in  support  of  his 
position.    Among  these  is  Starling  v.  Turner. 

2  Lev.  50,  2  Vent.  25,  where  the  plaintiff 
was  a  candidate  for  the  ofiice  of  bridge-mas- 
ter of  London  bridge,  and  the  lord  mayor  re- 
fused his  demand  of  a  poll,  and  it  was  de- 
termined that  the  action  was  maintainable 
for  the  refusal  of  the  poll.  Although  it  might 
have  been  that  the  plaintiff  would  not  have 
been  elected,  the  action  was  nevertheless 
maintainable;  for  the  refusal  was  a  viola- 
tion of  the  plaintiff's  right  to  be  a  candidate. 
So  in  the  case  cited,  as  from  23  Edw.  III.  18, 
tit.  "Defense,"  (it  is  a  mistake  in  the  MS., 
and  should  be  29  Edw.  III.  18b;  Fitz.  Abr. 
tit    "Defense,"  pi.   5,)   and  11  Hen.  IV.  47, 


l"l 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


wliere  the  owner  of  a  market,  entitled  to  toll 
upon    all    cattle    sold    witliin    tbe    market, 
brought  an  action  against  the  defendant  for 
hindering  a  person  from  going  to  the  market 
with  the  intent  to  sell  a  horse,  it  was,  on  the 
like  ground,   held   maintainable;   for  though 
the  horse  might  not  have  been  sold,  and  no 
toll  would  have  become  due,  yet  the  hindering 
the  plaintiff  from   the  possibility  of  having 
toll  was  such  an  injury  as  did  import  such 
damage,  for  which  the  plaintiff  ought  to  re- 
cover.   So   in   Hunt   v.    Dowman,    Cro.    Jac. 
478,  2  Rolle,  21,  where  the  lessor  brought  an 
action  against  the  lessee  for  disturbing  him 
from  entering  into  the  house  leased,  in  order 
to  view   it,  and  to  see  whether  any   waste 
was  committed;   and   it   was  held   that   the 
action  well  lay,  though  no  waste  was  com- 
mitted and  no  actual  damage  done,  for  the 
lessor  had  a  right  so  to  enter,  and  the  hinder- 
ing of  him  was  an  injury  to  that  right,  for 
which  he  might  maintain  an  action.    So  Her- 
ring V.  Finch,  2  Lev.  250,  where  it  was  held 
that  a  person  entitled  to  vote,  who  was  re- 
fused his   vote   at   an   election,    might   well 
maintain  an  action  therefor,  although  the  can- 
didate, for  whom  he  might  have  voted,  might 
not  have  been  chosen,   and  the  voter  could 
not  sustain  any  perceptible  or  actual  damage 
by  such  refusal  of  his  vote.    The  law  gives 
the  remedy  in  such  case,  for  there  is  a  clear 
violation  of  the  right.    And  this  doctrine,  as 
to  a  violation  of  the  right  to  vote,  is  now  in- 
controvortibly  established;  and  yet  it  would 
be   impracticable  to   show   any   temporal   or 
actual  damage  thereby.    See  Harman  v.  Tap- 
penden,   1   East,   555;  Drewe  v.  Coulton,   Id. 
563,    note;   Kilham    v.    Ward,    2   Mass.   236; 
Lincoln   v.    Hapgood,    11   Mass.   350;  2  Vin. 
Abr.    "Action,   Case,"   note   c,   pi.   3.    In  the 
case  of  Ashby  v.  White,  as  reported  by  Lord 
Raymond,    (2    Ld.    Raym.    953,)    Lord    Holt 
said:    "If  the  plaintiff  has  a  right,  he  must 
of  necessity  have  a  means  to  vindicate  and 
maintain  it,  and  a  remedy,  if  he  is  injured 
in  the  exercise  or  enjoyment  of  it;  and,  in- 
deed, it  is  a  vain  thing  to  imagine  a  right 
without  a   remedy;   for   want   of  right   and 
want    of    remedy    are    reciprocal."    S.    P.   6 
Mod.  53. 

The  principles  laid  down  by  Lord  Holt  are 
so  strongly  commended,  not  only  by  authori- 
ty, but  by  the  common  sense  and  common 
justice  of  mankind,  that  they  seem  absolutely, 
in  a  judicial  view,  incontrovertible.  And  they 
have  been  fully  recognized  in  many  other 
cases.  The  note  of  Mr.  Sergeant  Williams  to 
Mellor  V.  Spateman,  1  Saund.  340a,  note  2; 
Wells  V.  Watling,  2  W.  Bl.  1233;  and  the  case 
of  the  Tuubridge  Dippers,  (Weller  v.  Baker,; 
2  Wils.  414,— are  direct  to  the  purpose.  I  am 
aware  that  some  of  the  old  cases  inculcate  a 
different  doctrine,  and  perhaps  are  not  recon- 
cilable with  that  of  Lord  Holt.  There  are 
also  some  modern  cases  which  at  first  view 
seem  to  the  contrary.  But  they  are  dis- 
tinguisliable  from  that  now  in  judgment;  and, 
if  they  were  not,  ego  assentior  scsevoloe.    The 


case  of  Williams  v.  Morland,  2  Barn.  tS:  C.  9. 
10,  seems  to  have  proceeded  upon  the  ground 
that  there  was  neither  any  damage  nor  any 
injury  to  the  right  of  the  plaintiff.  Whether 
that  case  can  be  supported  upon  principle  it 
is  not  now  necessary  to  say.  Some  of  the 
dicta  in  it  have  been  subsequently  impugned, 
and  the  general  reasoning  of  the  judges  seems 
to  admit  that,  if  any  right  of  the  plaintiff 
had  been  violated,  the  action  would  have 
lain.  The  case  of  Jackson  v.  Pesked,  1  Maule 
&  S.  235,  turned  upon  the  supposed  defects 
of  the  declaration,  as  applicable  to  a  mere 
reversionary  interest,  it  not  stating  any  act 
done  to  the  prejudice  of  that  reversionary  in- 
terest. I  do  not  stop  to  inquire  whether 
there  was  not  an  overnicety  in  the  applica- 
tion of  the  technical  principles  of  pleading 
to  that  case,  although,  notwithstanding  the 
elaborate  opinion  of  Lord  Ellenborongh,  one 
might  be  inclined  to  pause  upon  it.  The  case 
of  Young  V.  Spencer,  10  Barn.  &  C  145,  turn- 
ed also  upon  the  point  whether  any  injury 
was  done  to  a  reversionai-y  interest.  I  con- 
fess myself  better  pleased  with  the  ruling  of 
the  learned  judge  (Mr.  Justice  Bayley)  at 
tbe  trial  than  with  the  decision  of  the  court 
in  granting  a  new  trial.  But  the  court  ad- 
mitted that,  if  there  was  any  injury  to  the 
reversionary  right,  the  action  would  lie;  and, 
although  there  might  be  no  actual  damage 
proved,  yet,  if  anything  done  by  the  tenant 
would  destroy  the  evidence  of  title,  the  ac- 
tion was  maintainable.  A  fortiori,  the  action 
must  have  been  held  maintainable,  if  the 
act  done  went  to  destroy  the  existing  right, 
or  to  found  an  adverse  right. 

On  the  other  hand,  Mai-zetti  v.  Williams, 
1  Barn.  &  Adol.  415,  goes  the  whole  length 
of  Lord  Holt's  doctrine;  for  there  the  plain- 
tiff recovered,  notwithstanding  no  actual 
damage  was  proved  at  the  trial;  and  Mr. 
Justice  Taunton  on  that  occasion  cited 
many  authorities  to  show  that  where  a 
wrong  is  done,  by  which  the  right  of  the 
party  may  be  injured,  it  is  a  good  cause  of 
action,  although  no  actual  damage  be  sus- 
tained. In  Hobson  v.  Todd,  4  Term  R.  71, 
73,  the  court  decided  the  case  upon  the  very  . 
distinction, which  is  most  material  to  the  ^ 
present  case,  that  if  a  commoner  might  not 
maintain  an  action  for  an  injury,  however 
small,  to  his  right,  a  mere  wrong-doer 
might,  by  repeated  tox-ts,  in  the  course  of 
time  establish  evidence  of  a  i-ight  of  com- 
mon. The  same  principle  was  afterwards 
recognized  by  Mr.  Justice  Grose,  in  Pindar 
V.  Wadsworth,  2  East,  162.  But  the  case 
of  Bower  v.  Hill,  1  Bing.  N.  C.  549,  fully 
sustains  the  doctrine  for  which  I  contend; 
and,  indeed,  a  stronger  case  of  its  applica- 
tion cannot  well  be  imagined.  There  the 
court  held  that  a  permanent  obstruction  to 
a  navigable  drain  of  the  plaintiff's,  though 
choked  up  with  mud  for  16  years,  was  ac- 
tionable, although  the  plaintiff  received  no 
immediate  damage  thereby;  for,  if  acqui- 
esced in  for  20  years,  it  would  become  evi- 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


dence  of  a  renunciation  and  abanflonmout 
of  the  right  of  way.  The  case  of  Bhmcliard 
V.  Baker,  8  Greenl.  253,  2G8,  recognizes  the 
same  doctrine  in  tlie  most  full  and  satisfac- 
tory manner,  and  is  directly  in  point;  for 
it  was  a  case  for  diverting  water  from  the 
plaintiff's  mill.  I  should  be  son-y  to  have 
it  supposed  for  a  moment  that  Tyler  v. 
AVilkinson,  4  Mason,  397,  Fed.  Gas.  No.  14,- 
312,  imported  a  different  doctrine.  On  the 
contrary,  I  have  always  considered  it  as 
proceeding  upon  the  same  doctrine. 

Upon  the  whole,  without  going  further  in- 
to an  examination  of  the  authorities  on  this 
subject,    my    judgment    is    that,    whenever 
there  is  a  clear  violation  of  a  right,  it  is  not 
necessai-y  in  an  action  of  this  sort  to  show 
actual    damage;     that    every    violation    im- 
ports damage;    and,  if  no  other  be  proved, 
the  plaintiff  is  entitled  to  a  verdict  for  nom- 
inal damages;    and  a  fortiori  that  this  doc- 
trine applies  whenever  the  act  done  is  of 
such  a  nature  as  that  by  its  repetition  or 
continuance  it  may  become  the  foundation 
or  evidence  of  an  adverse  right.     See,  also, 
JNIason  v.  Hill.  3  Barn.  &  Adol.  304,  5  Barn. 
&  Adol.  1.     But  if  the  doctrine  were  other- 
wise,  and   no  action   were  maintainable  at 
law,  without  proof  of  actual  damage,  that 
would   furnish   no  ground   why   a   court  of 
equity  should  not  interfere,  and  protect  such 
a  right  from  violation  and  invasion;    for,  in 
a  great  variety  of  cases,  the  very  ground  of 
the  inteiTpositiou  of  a  court  of  equity  is  that 
the  injury  done  is  irremediable  at  law,  and 
that  the  right  can  only  be  permanently  pre- 
served or  perpetuated  by  the  powers  of  a 
court  of  equity.     And  one  of  the  most  ordi- 
nary processes  to  accomplish  this  end  is  by 
a  writ  of  injunction,  the  nature  and  efficacy 
of  which  for  such  purpose  I  need  not  state, 
as  the  elementary   treatises   fully   expound 
them.     See  Eden,  Inj.;  2  Stoiy,  Eq.  Jur.  c. 
23,  §§  86-9.59;   Bolivar  Mauuf'g  Co.  v.  Nep on- 
set Manuf'g  Co.,  16  Pick.  241.     If,  then,  the 
diversion    of   water   complained    of    in   the 
present  case  is  a  violation  of  the  right  of 
the  plaintiff,   and   may  permanently  injure 
that  right,  and  become,   by  lapse  of  time, 
the  foundation  of  an  adverse  right  in  the 
defendants,  I  know  of  no  more  fit  case  for 
the   interposition   of  a   court  of   equity,   by 
way  of  injunction,  to  restrain  the  defend- 
ants from  such  an  injurious  act     If  there 
bo  a  remedy  for  the  plaintiff  at  law  for  dam- 
ages, still  that  remedy  is  inadequate  to  pre- 
vent and  redress  the  mischief.     If  there  be 
no  svich  remedy  at  law,  then,  a  fortiori,  a 
court  of  equity  ought  to  give  its  aid  to  vindi- 
cate and  perpetuate  the  right  of  the  plain- 
tiff.    A  court  of  equity  will  not,  indeed,  en- 
tertain a  bill  for  an  injunction  in  case  of  a 
mere  trespass  fully  remediable  at  law.    But 
if  it  might  occasion  irreparable  mischief  or 
permanent  injury,  or  destroy  a  right,  that 
is  the  appropriate  case  for  such  a  bill.     See 
2  Story,  Eq.  Jur.  §§  926-928,  and  the  cases 
there  cited;    Jerome  v.   Ross,  7  Johns.   Ch. 


315;  Van  Bergen  v.  Van  Bergen,  3  Johns. 
Ch.  282;  Turnpike  Road  v.  Miller,  5  Johns. 
Ch.  101;  Gardner  v.  Village  of  Newburgh,  2 
Johns.  Ch.  162. 

Let  us  come,  then,  to  the  only  remaining 
question  in  the  cause,  and  that  is  whether 
any  right  of  the  plaintiff,  as  mill-owner  on 
the  lower  dam,  is  or  will  be  violated  by  the 
diversion  of  the  water  by  the  canal  of  the 
defendants.     And  here  it  does  not  seem  to 
me  that,  upon  the  present  state  of  the  law, 
there  is  any  real  ground  for  controversy,  al- 
though   there    were   formerly    many    vexed 
questions,  and  much  contrariety  of  opinion. 
The  true  doctrine  is  laid  down  in  Wright  v. 
Howard,  1  Sim.  &  S.  190,  by  Sir  John  Leach, 
in  regard   to   riparian   proprietors,   and   his 
opinion  has  since  been  deliberately  adopted 
by  the  king's  bench.    Mason  v.  Hill,  3  Barn. 
&  Adol.  304,  5  Barn.  &  Adol.  1.     See,  also, 
Bealey  V.  Shaw,  6  East,  208.    "Prima  facie,"  i 
says  that  learned  judge,  "the  proprietor  of 
each  bank  of  a  stream  is  the  proprietor  of 
half  the  land  covered  by  the  stream;    but 
there  is  no  property  in  the  water.     Every 
proprietor  has  an  equal  right  to  use  the  wa- 
ter which  flows  in  the  stream;    and  conse- 
quently no  proprietor  can  have  the  right  to 
use  the  water  to  the  prejudice  of  any  other 
proprietor,  Avithout  the  consent  of  the  other 
proprietors  who  may  be  affected  by  his  oper- 
ations.    No    proprietor   can    either    diminish 
the  quantity  of  water  which  would  otherwise 
descend  to  the  proprietors  below,  nor  throw 
the  water  back  upon  the  proprietors  above. 
Evei-y  proprietor,  who  claims  a  right  either 
to  throw  the  water  back  above  or  to  diminish 
the   quantity  of  water  which   is  to   descend 
below,  must  in  order  to  maintain  his  claim, 
either  prove  an  actual  grant  or  license  from 
the  proprietors  affected  by  his  operations,  or 
must  prov«  an  uninterrupted  enjoyment  of 
twenty  years,   which  term  of  twenty  years 
is  now  adopted  upon  a  principle  of  general 
convenience,  as  affording  conclusive  presump- 
tion of  a   grant"     The  same   doctrine   was 
fully  recognized  and  acted  upon  in  the  case 
of  Tyler  v.   Wilkinson,   4  Mason,   397,   400- 
402;    and  also  in  the  case  of   Blanchard  v. 
Baker,  8  Greenl.  253,  206.     In  the  latter  case 
the  learned  judge  (Mr.  Justice  Weston)  who 
delivered  the  opinion  of  the  court,  used  the 
following  emphatic  language:    "The  right  to 
the  use  of  a  stream  is  incident  or  appurtenant 
to  the  land  through  which  it  passes.     It  is  an 
ancient  and  well-established  principle  that  it 
cannot  be  lawfully  diverted,  unless  it  is  re- 
turned again  to  its  accustomed  channel,  be- 
fore it  passes  the  land  of  a  proprietor  below. 
Running  water  is  not  susceptible  of  an  ap- 
propriation which   will  justify   the  diversion 
OP   unreasonable   detention   of   it.     The   pro- 
prietor  of  the   water-course   has   a   right  to 
avail  himself  of  its  momentum  as  a  power, 
which  may  be  turned  to  beneficial  purposes." 
The  case  of  Mason  v.  Hill,  5  Barn.  &  Adol. 
1,    contains  language   of   an  exactly   similar 
import,  used  by   Lord   Denmau  in  delivering 


6 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


the  opinion  of  the  court.     See,  also,  Gardner 
V.   Village  of  Newburgh.    2  Johns.   Ch.    162. 
Mr.  Chancellor  Kent  has  also  summoned  up 
the  same  doctrine,  with  his  usual  accm-acy, 
in  the  brief,  but  pregnant,  text  of  his  Com- 
mentaries,  (3  Kent,   Com.   [3d  Ed.]   lect.  42, 
p.  439;)   and  I   scarcely  know  where  else  it 
can  be  found  reduced  to  so  elegant  and  sat-  j 
jsf.Tctory    a    formulaiy.     In    the     old    booV'j  \ 
the  doctrine  is  quaintly,  tliough  clearly,  stat-  j 
ed;    for  it  is  said  that  a  water-course  begins  i 
ex  jm-e  naturae,  and,  having  taken  a  certain 
course  naturally,  it  cannot  be  [lawfully]   di- 
verted.    Aqua  currit,  et  debet  currere,  ut  cur- 
rere  solebat.    Shury  v.  Piggot,  3  Bulst.  339, 
Poph.  IGG. 

The  same  principle  applies  to  the  owners 
of  miUs  on  a  stream.  They  have  an  un- 
doubted right  to  the  flow  of  the  water  as  it 
has  been  accustomed  of  right  and  naturally 
to  flow  to  their  respective  mills.  The  pro- 
prietor above  has  no  right  to  divert  or  un- 
reasonably to  retard  this  natural  flow  to 
the  mills  below;  and  no  proprietor  below  has 
a  right  to  retard  or  turn  it  back  upon  the 
mills  above  to  the  prejudice  of  the  right 
of  the  proprietors  thereof.  This  is  clearly 
established  by  the  authorities  already  cited; 
the  only  distinction  between  them  being  that 
the  right  of  a  riparian  proprietor  arises  by 
mere  operation  of  law  as  an  incident  to  his 
ownership  of  the  bank,  and  that  of  a  mill- 
owner  as  an  incident  to  his  mill.  Bealey  v. 
Shaw,  6  East,  208;  Saunders  v.  Newman,  1 
Barn.  &  Aid.  258;  Mason  v.  Hill,  3  Barn.  & 
Adol.  304,  5  Barn.  &  Adol.  1;  Blanchard  v. 
Baker,  8  Greenl.  253,  268;  and  Tyler  v.  Wil- 
kinson, 4  Mason,  397,  400-405,— are  fully  in 
point.  Mr.  Chancellor  Kent  in  his  Commen- 
taries relies  on  the  same  principles  and  fully 
supports  them  by  a  large  survey  of  the  au- 
thorities. 3  Kent  Comm.  (3d  Ed.)  lect.  52, 
pp.  441^45. 

Now,  if  this  be  the  law  on  this  subject, 
upon  what  ground  can  the  defendants  insist 
upon  a  diversion  of  the  natural  sti'eam  from 
the  plaintiff's  mills,  as  it  has  been  of  right 
accustomed  to  flow  thereto?  First,  it  is  said 
that  there  is  no  perceptible  damage  done  to 
the  plaintiff.  That  suggestion  has  been  al- 
readj'  in  part  answered.  If  it  were  true,  it 
could  not  authorize  a  diversion,  because  it 
impairs  the  right  of  the  plaintiff  to  the  fuU, 
natm-al  flow  of  the  stream,  and  may  become 
the  foundation  of  an  adverse  right  in  the  de- 
fendants. In  such  a  case  actual  damage  is 
not  necessary  to  be  established  in  proof.  The 
law  presumes  it.  The  act  imports  damage 
to  the  right,  if  damage  be  necessary.  Such 
a  case  is  wholly  distinguishable  from  a  mere 
fugitive,  temporary  trespass,  by  diverting  or 
withdrawing  the  water  a  short  period  with- 
out damage,  and  without  any  pretense  of 
right.  In  such  a  case,  the  wrong,  if  there  be 
no  sensible  damage,  and  it  be  transient  in  its 
nature  and  character,  as  it  does  not  touch 
the  right,  may  possibly  (for  I  give  no  opin- 
ion upon  such  a  case)  be  without  redress  at 


law;  and  certainly  it  would  found  no  ground 
for  the  interposition  of  a  court  of  equity  by 
way  of  injunction. 

But  I  confess  myself  wholly  unable  to  com- 
prehend how  it  can  be  assumed,  in  a  case 
like  the  present,  that  there  is  not  and  cannot 
be  an  actual  damage  to  the  right  of  the  plain- 
tiff. What  is  that  right?  It  is  the  right  of 
having  the  water  flow  in  its  natural  current 
at  all  times  of  the  year  to  the  plaintilf's 
mills.  Now,  the  value  of  the  mill  privileges 
must  essentially  depend,  not  merely  upon  the 
velocity  of  the  stream,  but  upon  the  head  of 
water  which  is  permanently  maintained.  The 
necessary  result  of  lowering  the  head  of  wa- 
ter permanently  would  seem,  therefore,  to 
be  a  direct  dimiimtion  of  the  value  of  the 
privileges;  and,  if  so,  to  that  extent  it  must 
be  an  actual  damage. 

Again,  it  is  said  that  the  defendants  are 
mill-owners  on  the  lower  dam,  and  are  en- 
titled, as  such,  to  their  proportion  of  the 
water  of  the  stream  in  its  natural  flow.  Cer- 
tainly they  are.  But  where  are  they  so  en- 
titled to  take  and  use  it?  At  the  lower  dam; 
for  there  is  the  place  where  their  right  at- 
taches, and  not  at  any  place  higher  up  the 
stream.  Suppose  they  are  entitled  to  use 
for  their  own  mills  on  the  lower  dam  half 
the  water  which  descends  to  it,  what  ground 
is  there  to  say  that  they  have  a  right  to  draw 
off  that  half  at  the  head  of  the  mill-pond? 
Suppose  the  head  of  water  at  the  lower  dam 
in  ordinary  times  is  two  feet  high,  is  it  not 
obvious  that,  by  withdrawing  at  the  head 
of  the  pond  one-half  of  the  water,  the  wa- 
ter at  the  dam  must  be  proportionally  low- 
ered? It  makes  no  difference  that  the  de- 
fendants insist  upon  drawing  off  only  one- 
fourth  of  what  they  insist  they  are  entitled 
to;  for,  pro  tanto,  it  will  operate  in  the  same 
manner;  and,  if  they  have  a  right  to  draw 
off  to  the  extent  of  one-fourth  of  their  priv- 
ilege, they  have  an  equal  right  to  draw  off 
to  the  full  extent  of  it.  The  privilege  at- 
tached to  the  mills  of  the  plaintiff  is  not  the 
privilege  of  using  half,  or  any  other  propor- 
tion merely,  of  the  water  in  the  stream,  but 
of  having  the  whole  stream,  undiminished 
in  its  natural  flow,  come  to  the  lower  dam 
with  its  full  power,  and  there  to  use  his 
full  share  of  the  water-power.  The  plaintiff 
has  a  title,  not  to  a  half  or  other  proportion 
of  the  water  in  the  pond,  but  is,  if  one  may 
so  say,  entitled  per  my  et  per  tout  to  his 
proportion  of  the  whole  bulk  of  the  stream, 
undivided  and  indivisible,  except  at  the  lower 
dam.  This  doctrine,  in  my  judgment,  irre- 
sistibly follows  from  the  general  principles 
already  stated;  and,  what  alone  would  be  de- 
cisive, it  has  the  express  sanction  of  the  su- 
preme court  of  Maine  in  the  case  of  Blan- 
chard V.  Baker,  8  Greenl.  253,  270.  The  court 
there  said,  in  reply  to  the  suggestion  that 
the  owners  of  the  eastern  shore  had  a  right 
to  half  the  water,  and  a  right  to  divert  it  to 
that  extent:  "It  has  been  seen  that,  if  they 
had  been  owners  of  both  sides,  they  had  no 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


right  to  divert  the  water  without  again  re- 
turning it  to  its  original  channel,  (before  it 
passed  the  lands  of  another  proprietor.)  Be- 
sides, it  was  possible,  in  the  nature  of  things, 
that  they  could  take  it  from  their  side  only. 
An  equal  portion  from  the  plaintiff's  side 
must  have  been  mingled  with  all  that  was 
diverted." 

A  suggestion  has  also  been  made  that  the 
defendants  have  fully  indemnified  the  plain- 
tiff from  any  injury,  and  in  truth  have  con- 
ferred a  benefit  on  him,  by  securing  the  wa- 
ter, by  means  of  a  raised  dam,  higher  up 
the  stream,  at  Sebago  pond,  in  a  reservoir, 
so  as  to  be  capable  of  affording  a  full  supply 
in  the  stream  in  the  dryest  seasons.  To  this 
suggestion  several  answers  may  be  given. 
In  the  first  place,  the  plaintiff  is  no  party  to 
the  contract  for  raising  the  new  dam,  and  has 
no  interest  therein,  and  cannot,  as  a  matter 
of  right,  insist  upon  its  being  kept  up,  or 
upon  any  advantage  to  be  derived  therefrom. 
In  the  next  place,  the  plaintiff  is  not  com- 
pellable to  exchange  one  right  for  another, 


or  to  part  with  a  present  interest  in  favor  of 
the  defendants  at  the  mere  election  of  the 
latter.  Even  a  supposed  benefit  cannot  be 
forced  upon  him  against  his  will;  and,  cer- 
tainly, there  is  no  pretense  to  say  that,  in 
point  of  law,  the  defendants  have  any,  right 
to  substitute,  for  a  present  existing  right  of 
the  plaintiff's,  any  other  which  they  may 
deem  to  be  an  equivalent  The  private  prop- 
erty of  one  man  cannot  be  taken  by  another, 
simply  because  he  can  substitute  an  equiva- 
lent benefit. 

Having  made  these  remarks  upon  the  points 
raised  in  the  argument,  the  subject,  at  least 
so  far  as  it  is  at  present  open  for  the  con- 
sideration of  the  court,  appears  to  me  to  be 
exhausted.  Whether,  consistently  with  this 
opinion,  it  is  practicable  for  the  defendants 
successfully  to  establish  any  substantial  de- 
fense to  the  bill,  it  is  for  the  defendants,  and 
not  for  the  court,  to  consider.  I  am  author- 
ized to  say  that  the  disti-ict  judge  concurs  in 
this  opinion. 

Decree  accordingly. 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


PAUL  V.  SLASON  et  aL 

(22  Vt.  231.) 

Supreme  Court  of  Vermont.    Rutland. 
Term,  1850. 


Jan. 


Trespass  for  taking  two  cords  of  wood, 
two  baskets,  two  pitchforks,  two  liorses. 
one  harness,  and  one  wagon.  Plea,  the 
general  issue,  with  notice,  that  the  defend- 
ant Charles  H.  Slason  attached  the  prop- 
erty by  virtue  of  a  writ,  which  he  was  le- 
gally deputised  to  serve,  in  favor  of  one 
Langdon  against  the  plaintiff,  and  that  the 
other  defendants  aided  him  in  so  doing,  at 
his  request.  Trial  by  jury,  September 
Term,  1848,— Hall,  J.,  presiding.  On  trial 
it  appeared,  that  on  the  twenty  sixth  day 
of  September,  1844,  the  defendant  Francis 
Slason  commenced  a  suit  in  the  name  of 
Benjamin  F.  Langdon  against  the  plaintiff, 
and  that  the  defendant  Charles  H.  Slason, 
who  was  legally  deputized  to  serve  the 
want,  which  was  returnable  to  the  county 
court,  attached  the  property  in  question, 
except  one  pitchfork,  and  that  the  defend- 
ant Pelkey  assisted  in  removing  the  prop- 
erty. It  also  appeai-ed,  that  on  the  same 
day  Charles  H.  Slason  and  Pelkey  made 
use  of  the  horse,  wagon  and  harness,  part 
of  thepropertj^  attached,  in  removing  grain 
and  other  property,  which  was  attached 
at  the  same  time,  on  the  same  writ,  and 
upon  the  same  farm,  and  continued  to  use 
them  for  this  purpose  through  the  day; 
and  that  on  the  next  day  Charles  H.  Sla- 
son was  seen  driving  the  same  horse  and 
wagon,  with  the  harness,  in  the  highway 
in  the  vicinity, — but  upon  what  business 
did  not  appear.  It  also  appeared,  that  the 
defendants  took  a  pitchfork  belonging  to 
the  plaintiff,  and  used  it  during  the  day,  on 
which  the  attachment  was  made,  in  remov- 
ing the  grain  &c.  The  defendants  offered 
in  evidence  the  files  and  record  of  the  su- 
preme court,  in  the  suit  in  favor  of  Lang- 
don against  the  plaintiff,  in  which  the  prop- 
erty in  question  was  attached,  for  the  pur- 
pose of  proving,  that  judgment  was  ren- 
dered therein  in  favor  of  Langdon; — to 
which  evidence  the  plaintiff  objected ;  but 
it  was  admitted  by  the  court.  The  defend- 
ants then  offered  in  evidence  an  execution, 
purporting  to  have  been  issued  upon  the 
judgment  in  the  supreme  court  above  men- 
tioned, dated  February  21, 1848; — to  the  ad- 
mission of  which  the  plaintiff  objected,  in- 
sisting, that  an  exemplified  copy  of  the 
judgment  should  be  produced,  before 
the  execution  could  be  *given  in  evi-  *233 
dence, and  that  theexecution,andthe 
issuing  thereof,  could  be  shown  only  by  a 
certified  copy  of  therecordof  the  judgment; 
— but  the  objection  was  overruled  by  the 
court. 

The  defendants  then  offered  in  evidence 
the  return  of  oneEdgerton,as  sheriff,  upon 
the  said  execution,  to  show  that  the  wagon 
in  question  was  sold  thereon  and  the  pro- 
ceeds applied  in  payment  of  the  debt.  To 
the  admission  of  this  evidence  the  plaintiff 
objected,  upon  the  ground,  that  from  the 
return  it  appeared,  that  the  property  was 
sold  two  days  after  the  sheriff  received  the 
execution  for  service,  as  shown  by  his  in- 
dorsement upon  it.  The  counsel  for  the  de- 
fendants then  suggested,  that  there  was  a 


mistake  in  the  return,  in  stating  the  day 
of  the  sale,  and  moved  the  court,  that  the 
sheriff  have  leave  to  amend  his  return  in 
that  particular.  To  this  the  plaintiff  ob- 
jected ;  but  the  court  permitted  the  sheriff 
to  amend  his  return,  so  as  to  state  the  day 
of  sale  to  have  been  one  month  later  than 
stated  originally  in  the  return.  The  de- 
fendants then  offered  in  evidence  the  re- 
turn, as  amended ;  to  which  the  plaintiff 
objected, — but  the  objection  was  overi-uled 
by  the  court.  The  defendants  then  offered 
in  evidence  the  return  of  the  sheriff  upon  the 
original  writ  in  favor  of  Langdon  against 
the  plaintiff,  showing  an  appraisal  of  the 
horse  and  some  other  propei'ty  attached, 
and  that  the  plaintiff  had  furnished  secu- 
rity tothesheriff  and  received  possession ol 
the  property.  It  appeared,  that  the  money 
had  not  been  paid  on  the  security,  and  no 
application  of  the  property  had  ever  been 
made  upon  the  execution  by  the  sheriff,  or 
by  any  other  person.  The  defendants  also 
proved,  that  one  McCune  had  executed  a  re- 
ceipt to  the  sheriff  for  a  portion  of  the  prop- 
erty attached,  and  that  the  property,  ex- 
cept the  wagon  which  was  sold  upon  the 
execution,  went  into  the  possession  of  the 
plaintiff.  The  plaintiff  requested  the  court 
to  charge  the  jury, — 1.  That  the  defend- 
ants could  not  justify  the  taking  of  the  prop- 
erty in  question  under  the  writ  in  favor  of 
Langdon,  if  the  property  attached,  or  any 
portion  thereof,  were  put  to  use  by  the  of- 
ficer who  had  attached  it.  2.  That  prop- 
erty attached  must  be  considered  as  in  the 
custody  of  the  law,  and  the  attaching  of- 
ficer has  no  authority  to  put  it  to  use;  and 
if,  in  this  case,  they  found,  that,  upon  the 
property  being  attached  by  Charles  H.  Sla- 
son, he  put  the  horse,  wagon  and  harness, 
to  use,  and  continued  to  use  them, 
during  the  greater  part  *of  the  day,  *234 
In  removing  the  other  property  at- 
tached, he  rendered  himself  a  trespasser  ab 
initio,  and  could  not  justify  taking  the 
property,  or  any  i)art  thereof,  under  the 
attachment.  3.  That  if  the  officer  could  jus- 
tify the  taking  of  the  property  linder  the 
attachment,  if  he  so  used  any  part  of  it,  he 
could  not  justify  the  taking  of  the  horse, 
wagon  and  harness  so  used;  but,  as  to  the 
property  so  used,  the  authority  was  ren- 
dered void  by  the  abuse.  4.  That  the  use  of 
the  horse,  wagon  and  harness,  on  the  next 
day  after  the  attachment,  was  unjustifia- 
ble, and  rendered  the  ofilcer  a  trespasser 
ab  initio.  5.  That  the  application  of  the 
plaintiff  to  have  the  property  appraised, 
under  the  statute,  in  order  to  regain  the 
possession  of  it,  and  giving  security  to  the 
sheriff,  was  not  a  waiver  of  the  right  of 
action  against  the  defendant  for  the  tres- 
pass ;  but  that  the  plaintiff  was  entitled  to 
recover  the  amount  thus  secured  by  him. 
6.  That  if  a  portion  of  the  property  were 
delivered  to  the  receiptor,  the  plaintiff  was 
entitled  to  recover  its  value,  unless  it  had 
come  to  his  possession.  7.  That  if  thejury 
found,  that  the  defendants  took  the  plain- 
tiff's pitchfork  and  used  it  during  the  day, 
without  right,  he  was  entitled  to  recover 
its  value,  unless  it  were  returned, — and 
that,  if  returned,  he  was  entitled  to  re- 
cover nominal  damages.  8.  That  the  sale 
of  the  wagon  and  the  application  of  its 
uroceeds  upon  the  execution  in  favor  oi 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


Langdon  could  have  no  effect  upon  the 
amount  of  damages  in  this  suit.  But  the 
court  charged  the  jury,  that,  from  the  tes- 
timony, the  attachment  and  disposition 
of  theproperty  attached  was  ajustification 
for  the  defendants,  unless  they  had  been 
guilty  of  such  an  abuse  of  the  property,  as 
to  make  them  trespassers  nh  initio; — that 
whether  the  defendants  were  trespassers  nb 
initio  depended  upon  the  cliaracter  of  tlie 
use  of  tlie  property  by  them,  alter  the  at- 
tachment;— that  the  use  of  tlie  horse, 
wagon  and  harness,  in  removing  and  secur- 
ing other  property  of  the  plaintiff,  attached 
the  same  day,  on  the  same  writ  and  on  the 
same  farm  with  the  horse,  wagon  and  har- 
ness,— the  use  being  for  a  part  of  the  (\a,y 
only, — would  not  necessarily  be  such  an 
abuse  of  the  officer's  authority,  as  to  make 
the  defendants  trespassers  ab  initio;  but 
that  if  thej^  found,  either  that  such  use  of 
the  ijroperty  by  the  defendant  was  wan- 
ton, and  with  a  design  to  injure  the  plain- 
tiff, or  that  the  property  was  injured  by 
it  so  as  materially  to  diminish  its  value, 
the  defendants  would  be  trespassers 
*235  *in  the  original  taking  and  be  liable 
in  this  action; — that  whether  the  driv- 
ing of  the  horse  and  wagon  by  the  officer, 
the  next  day  after  the  attachment,  was  an 
abuse  of  his  authority  depended  upon  the 
purpose  and  business,  for  which  they  were 
driven;  that  if  the  jury  found,  that  the  of- 
ficer was  using  the  horse  and  wagon  for 
other  purposes  than  that  of  removing  and 
securing  them  in  a  convenient  place  for 
keeping,  under  the  attachment,  the  defend- 
iints  would  be  lialDle;  but  if  for  such  a  pur- 
pose, they  would  not  be  liable.  In  regard 
to  damages,  the  court  instructed  the  jury, 
that,  the  property  having  either  been  sold 
and  applied  on  the  execution,  or  delivered 
to  the  plaintiff  on  security  furnished  by 
him,  the  plaintiff  would  not  be  entitled  to 
recover  the  full  value  of  it;  but  that  the 
measure  of  damages  woiild  be  the  amount, 
which  the  property  had  been  diminished  in 
value  by  the  defendants'  abuse  of  it.  In 
regard  to  the  pitchfork  the  court  charged 
the  jury,  that  if  they  believed,  from  the  evi- 
dence, that  the  defendants  took  and  carried 
it  away,  they  should  give  the  jilaintiff  its 
value;  that  if  it  was  used  and  left  upon  the 
premises,  so  that  the  defendant  received  it 
again,  and  it  was  injured  by  the  use,  the 
plaintiff  would  be  entitled  to  recover  the 
amount  of  the  injury ;  but  that  if  they 
found,  that  it  was  merely  used  for  a  por- 
tion of  a  day  in  removing  the  plaintiff's 
property,  there  attached,  and  was  left 
where  it  was  found,  so  that  the  plaintiff 
had  it  again,  and  that  it  was  not  injured 
by  the  use,  they  were  not  bound  to  give  the 
plaintiff  damages  for  such  use.  The  jury 
retui-ned  a  verdict  for  the  defendants.  Ex- 
ceptions by  plaintiff. 

M.  G.  Evnvta  and  Tlirall  &  Smith,  for 
plaintiff,  cited  Lamb  v.  Day  8  Vt.  4U7;  3 
8tark.  Ev.  IIOS;  1  Chit.  PI.  171  ;  5  Bac.  Abr. 
161;  Strong  v.  Hobbs,  20  Vt.  185;  Hart  v. 
Hyde,  5  Vt.  328;  Orvis  v.  Isle  La  Mott,  12 
Vt.  195;  Fletcher  v.  Pratt,  4  Vt.  182;  and 
Brainard  v.  Burton,  5  Vt.  97. 

E.  Eds;ei-ton,  for  defendants,  cited  2 
Greenl.  eV.  §  253 ;  lb.  283.  §  276,  n.  5 ;  1  Stark. 
Ev.  151,  §  33;  Mickles  et  al.  v.  Ilaskin,  11 
Wend.  125;  Lamb  v.  Day,  8  Vt.  407. 


*The  opinion  of  the  court  was  de-  *236 
livered  by 

POLAND,  .T.  Thp  first  question,  arising 
in  this  case,  is  in  relation  to  the  charge  of 
the  county  court  to  the  jury  as  to  the  use 
of  the  horse,  wagon  and  harness  by  the  de- 
fendants, in  removing  the  other  property 
of  the  plaintiff,  which  was  attached  at  the 
same  time.  The  jury  Avere  charged,  that 
if  they  were  only  used  in  removing  the 
other  property,  and  were  not  injured  or 
lessened  in  value  thereby,  such  use  would 
not  make  the  defendants  trespassers  ab 
initio. 

It  was  an  early  doctrine  of  the  common 
law,  that  when  a  party  was  guilty  of  an  I 
abuse  of  authority  given  by  the  law, lie  be- 
came a  trespasser  ab  initio,  and  lost  the 
protection  of  the  authority,  under  which 
he  originally  acted, — as,  if  beasts,  taken 
damage  feasant,  or  distrained  for  I'ent, 
were  killed,  or  jiut  to  work,  by  the  party 
taking  them,  he  might  be  sued  in  trespass 
as  for  an  original  wrongful  taking.  This 
doctrine  has  fully  obtained  in  this  coun- 
try, and  was  acted  upon  by  this  court  in 
the  case  of  Lamb  v.  Day  et  al.,  S  Vt.  407, 
where  it  was  held,  that  the  defendants, 
who  had  attached  the  plaintiff's  mare  (one 
being  creditor  and  the  other  officer)  and 
worked  her  for  several  Aveeks  in  running 
a  line  of  stages,  without  the  plaintiff's  con- 
sent, became  trespassers  ab  initio.  The 
doctrine  has,  to  our  knowledge,  never  been 
extended  to  any  case,  except  where  there 
has  been  a  clear,  substantial  violation  of 
the  plaintiff's  rights,  and  of  such  a  char- 
acter as  to  show  a  wanton  disregard  of 
duty  on  the  part  of  the  defendants.  Were 
the  acts  of  the  defendants,  in  using  the 
horse,  wagon  and  harness  under  the  cir- 
cumstances and  for  the  purpose  mentioned 
in  this  case,  such  an  abuse  of  the  pi'operty 
and  of  the  authority  under  which  it  was 
taken,  as  ought  to  deprive  them  of  the  ben- 
efit of  its  protection? 

It  was  the  duty  of  the  officer  to  remove 
the  property,  in  order  to  make  his  attach- 
ment effectual,  and  the  expense  of  such  re- 
moval must  be  borne  by  the  debtor;  and 
instead  of  the  plaintiff  being  injured  by  th 
use  of  the  property,  he  was  really  benefited 
by  it.  The  doctrine,  for  which  the  plain- 
tiff contends,  goes  the  extent  of  saying, 
that  any  use  of  the  property  makes  the  of- 
ficer a  trespasser; — so  that  if  an  officer  at- 
tach a  horse  and  wagon,  and  use  the  horse 
for  the  pui'pose  of  drawing  away  the 
wagon  from  the  possession  of  the  debtor, 
he  becomes  a  tort  feasor.  We  are  wholly 
unable  to  satisfy  ourselves,  that  the  law 
has  ever  gone  to  so  unreasonable  an 
*237  extent,  or  *has  ever  been  applied  to 
any  case,  except  those  where  the 
property  has  been  injured,  or  has  been  used 
by  the  ofiicer  for  his  own  benefit,  or  for  the 
benefit  of  some  one  other  than  tlie  debtor. 
This  was  the  rule  laid  down  by  the  county 
court,  and  we  are  fully  satisfied  of  its  cor- 
rectness. 

2.  The  next  question  arises  upon  the 
charge  to  the  jiiry  in  relation  to  the  driv- 
ing of  the  horse  and  wagon  by  the  officer 
on  the  next  day  after  the  attachment.  The 
case  states,  that  the  officer  was  seen  driv- 
ing the  horse  and  wagon  in  the  highway. 


10 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


Dut  upon  what  business  did  not  appear. 
The  jur3^  were  charged,  that  if  they  found, 
that  the  officer  Avas  using  the  horse  and 
wagon  for  other  purposes,  than  that  of  re- 
moving and  securing  them  in  a  place  for 
conveniently  keeping  them,  while  under  the 
attachment,  the  defendants  would  be  lia- 
ble,— otherwise  not. 

The  officer,  no  doubt,  had  the  right  to 
drive  the  horse  and  wagon  for  the  purpose 
suggested  in  the  charge ;  but  the  plaintiff 
claims,  that  the  legal  presumijtion  should 
be,  in  the  absence  of  express  proof  as  to 
the  object  and  purpose  of  driving  the  horse 
and  wagon,  that  it  was  for  an  unlawful 
purpose.  But  in  our  opinion  this  would  be 
conti'ary  to  the  ordinary  rule  of  legal  pre- 
sumption in  relation  to  all  persons,  and 
especially  persons  acting  under  legal  au- 
thority. Omnia, prsesuniuntur  rite  acta  is 
a  maxim,  which  is  always  applied  to  the 
conduct  of  persons  actingunder  the  author- 
ity of  law.  Although  there  was  no  direct 
[evidence  as  to  the  object  and  purpose  of 
driving  the  horse  and  wagon,  the  jury 
might  well  infer  the  object  from  the  time, 
circumstances  and  direction  of  the  driving; 
and  we  think  it  was  properly  left  to  them 
to  determine.  We  think,  it  was  upon  the 
plaintiff  to  show  the  act  of  the  officer  to 
be  unlawful ;  and  if  he  had  it  left  to  the  jury 
to  decide,  even  without  any  evidence  to 
prove  it,  we  do  not  see,  that  he  has  any 
ground  of  complaint. 

3.  Another  question  is  also  raised  upon 
the  charge  to  the  jury  in  relation  to  the 
use  of  the  pitchfork  by  the  defendants. 
Under  the  chax-ge  thejury  must  havefound, 
that  the  pitchfork  was  used  by  the  defend- 
ants only  in  moving  the  plaintiff's  proper- 
ty, that  it  was  left  where  they  found  it, 
that  the  plaintiff  received  it  again,  and 
that  it  was  in  no  way  or  manner  injured. 
They  were  told  by  the  court,  that  if  they 
found  all  these  facts  proved,  they  were  not 
obliged  to  give  the  plaintiff  any  damages 
for  the  fork. 

It  is  true,  that,  by  the  theory  of  the 
*238  law,  whenever  an  invasion  of  *a  right 
is  established,  though  no  actual  dam- 
age be  shown,  the  law  infers  a  damage  to 
the  owner  of  the  property  and  gives  nom- 
inal damages.  This  goes  upon  the  ground, 
either  that  some  damage  is  the  probable 
result  of  the  defendant's  act.orthat  his  act 
would  have  effect  to  injure  the  other's 
right,  and  would  be  evidence  in  future  in 
favor  of  the  wrong  doer.  This  last  applies 
more  particularly  to  unlawful  entries  upon 
real  property,  and  to  disturbance  of  incor- 
poreal rights,  when  the  unlawful  act  might 
ha.ve  an  effect  upon  the  right  of  the  party 
and  be  evidence  in  favor  of  the  wrong  doer, 
if  his  right  ever  came  in  question.  In  these 
cases  an  action  may  be  supported,  though 
there  be  no  actual  damage  done, — because 
otherwise  the  party  might  lose  his  right. 
I  So,  too,  whenever  any  one  wantonly  in- 
j  vades  another's  rjglits  for  the  purpf)se  of 
I  injury,  an  action  will  lie,  though  no  actual 
damage  bo  done;  the  law  presumes  dam- 
age, on  account  of  the  unlawful  intent. 
But  it  is  believed,  that  no  case  can  be  found, 
where  damages  have  been  given  for  a  tres- 
pass to  personal  property,  when  no  unlaw- 
ful intent,  or  disturbance  of  a  right,  or  pos- 
session, is  shown,  and   when  not  only  all 


probable,  but  all  possible,  damage  is  ex- 
pressly^ disproved. 

The  English  courts  have  recently  gone 
far  towards  breaking  up  the  whole  sys- 
tem of  giving  verdicts,  when  no  actual  in- 
jury has  been  done,  unless  there  be  some 
right  in  question,  which  it  was  important 
to  the  plaintiff  to  establish.  In  the  case  of 
Williams  v.  Mostyn,  4  M.  &  W.  145,  where 
case  was  brought  for  the  voluntary  escape 
of  one  Langford,  taken  on  mesne  process, 
and  it  was  admitted,  that  the  plaintiff  had 
sustained  no  actual  damage,  or  delay,  the 
defendant  having  retui'ued  to  the  custody 
of  the  plaintiff,  a  verdict  was  found  for  the 
plaintiff  for  nominal  damages.  But,  on 
motion,  the  court  directed  a  nonsuit  to  be 
entered,  saying  that  there  had  been  no 
damage  in  fact  or  in  law.  So  in  a  suit 
brought  by  the  owner  of  a  house  against  a 
lessee,  for  opening  a  door  without  leave, 
the  premises  not  being  in  any  way  weak- 
ened, or  injured,  by  the  opening,  the  court 
refused  to  allow  nominal  damages,  and  re- 
mitted the  case  to  the  jury  to  say,  whether 
the  plaii) tiff's  reversionary  interest  had  in 
point  of  fact  been  prejudiced.  Young  v. 
Spencer,  iuB.  &  C.  145,  [21  E.  C.  L.  70.]  Mr. 
Broome,  in  nis  recent  work  on  Legal  Max- 
ims, lays  down  the  law  in  the  following 
language, — "Farther,  there  are  some  in- 
juries of  so  small  and  little  consideration  in 
the  law,  that  no  action  will  lie  for  them  ; 
for  instance,  in  respect  to  the  pay- 
ment *of  tithes,  the  principle  which  *239 
may  be  extracted  fi'om  the  cases  ap»- 
pears  to  be,  that  for  small  quantities  of 
corn,  involuntarily  left  in  the  process  of 
raking,  tithe  shall  not  be  payable,  unless 
thei'e  be  any  pai'ticular  fraud,  or  intention 
to  deprive  the  parson  of  his  full  right." 

If  any  farther  authority  is  deemed  neces- 
sary, in  support  of  the  ruling  of  the  county 
court  on  this  point,  we  have  only  to  refer 
to  that  ancient  and  well  established  maxim, 
— de  miniwis  non  curat  lex, — which  seems 
peculiai'ly  applicable  inthiscase,  and  would 
alone  have  been  ample  authority  upon  this 
part  of  the  case ;  for  we  fully  agree  with 
Mr.  Sedgwick,  that  the  law  should  hold 
out  no  inducement  to  useless  or  vindictive 
litigation.  Sedgwick  on  Dam.  62.  This 
disposes  of  all  the  questions  raised  upon 
the  charge. 

4.  The  remaining  questions  in  the  case 
arise  upon  the  admission  of  the  original 
files  and  record  of  the  case  Langdon  v. 
Paul.  The  plaintiff  objected  to  the  intro- 
duction of  theoriginal  record,  and  claimed, 
that  the  judgment  could  only  be  proved  by 
an  exemplified  copy  of  the  record.  But  we 
think  the  objection  not  well  founded.  If 
the  clerk  of  the  supreme  court  were  willing 
to  bring  the  original  record  into  court,  we 
think  it  might  well  be  used.  He  probably 
could  not  becompelled  to  do  so,  and  might 
have  required  the  party  to  procure  a  copy 
of  the  same ;  but  when  the  original  record 
is  brought  into  court,  we  think  it  w^ould 
be  very  difficult  to  give  any  substantial 
reason,  why  it  is  not  evidence  of  as  high  a 
character,  as  a  copy  of  the  same  record 
would  be.  The  practice  of  receiving  orig- 
inal records  as  evidence  has  been  universal, 
as  we  believe,  in  this  state,  and  is  often 
much  more  convenient  than  to  procure 
copies.     Nye  et  al.  v.  Kellam,  18  Vt.  594. 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


11 


In  relation  to  the  amendment  of  the  exe- 
cution by  the  otticoT-,  it  is  very  clear,  that 
the  county  court  liad  no  power  to  permit 
any  sucl)  anieiidmcnt;  but  we  cannot  per- 
ceive, tliat  llie  case  was  in  any  Avay  affected 
by  it.  If  tlie  oflicer,  Avho  lield  the  execu- 
tion, was  ftuilty  of  any  irregularity  in  his 
procecdinjis  in  tlie  sale  of  tlie  Avaj^on  upon 
the  execution,  it  could  not  have  the  effect 
to  make  tliese  delcndants  ti-cspasscrs,  Avho 
took  the  pi'operty  ri.sj,htfully,  and  were  in 
no  Avay  resiionsible  for  the  act  of  the  sher- 
iff, Avho  had  the  execution. 

We  find  no  error  in  the  proceeding's  of  the 
county  court,  and  their  judgment  is  af- 
firmed. 

NOTE.  In  Fullam  v.  Stoarns,  30  Vt.  454.  the 
question  was  Avhether  a  trespasser  should  be 
held  liable  for  the  value  of  certain  thongs  or 
strlufjs,  which  were  used  to  fasten  together  the 
ends  of  a  leather  belt,  and  which  the  trespasser 
had  unnecessarily  cut.  The  trial  court  had  in- 
structed the  jury  that  if  they  found  the  thongs  to 
be  old,  Avorn  out.  and  nearly  worthless,  the  de- 
fendant would  not  be  liable  unless  he  cut  theiu 
wantonly.  As  to  this,  the  supreme  court,  bv 
BENNETT,  J.,  said: 

"We  have  more  difficulty  in  relation  to  the 
manner  in  which  the  court  put  the  case  to  the 
jury  relative  to  the  bauds  or  belts.  The  case 
is  not  put  to  them  upon  the  ground  that  it  was 
necessary  to  cut  the  thongs  with  which  the 
bauds  were'  laced  or  fastened  together.  It  could 
not  have  so  beeu,  for  the  case  says  the  evidence 
went  to  show  that  they  could  have  been  easily 
taken  out  without  cutting. 

"With  reference  to  the  value  of  the  thongs, 
the  case  should  have  been  put  to  the  jury  upou 
the  groun<l  that  they  found  just  what  the  de- 
fendants' testimony  tended  to  prove,  and  noth- 
ing more,  and  that  was  'that  the  thongs  were 
considerably  worn,  and  of  small  value.'  The 
court  were  not  warranted,  upon  such  evidence, 
to  put  the  case  to  the  jury  upon  the  hypothesis 
that  they  should  find  the  thongs  to  be  old,  worn 
out,  and  nearly  worthless.  The  court  should 
have  charged  the  jury  as  to  what  the  law  would 
have  been  had  the  jury  found  the  thongs  to 
have  been  'considerably  worn,  and  of  small 
value.'  Would  the  court,  upon  such  a  finding. 
apply  the  maxim,  'De  minimis  non  curat  lex'? 
While,  on  the  one  hand,  we  should  be  unwill- 
ing to  hold  out  inducements  to  useless  and  vin- 
dictive litigation,  we  should,  on  the  other,  be 
slow  to  violate  and  set  aside  well-settled  prin- 
ciples. To  give  a  right  of  action,  it  has  often 
been  said  there  must  be  both  an  injury  and  a 
damage,  and  it  has  been  as  often  said  that  ev- 
ery violation  of  a  right  imports  some  damage, 
and,  if  none  other  be  proved,  the  law  allows  a 
nominal  damage.  See  Whittemore  v.  Cutter,  1 
Gallisou,  429.  The  maxim,  'De  minimis  non 
curat  lex,'  I  apprehend,  Avhenever  it  is  applied 
correctly  to  take  awaj'  a  right  of  recovery,  has 
reference  to  the  injury,  and  not  to  the  resulting 
damage. 

"If  a  person  has  a  right  to  vote  at  an  election, 
and  he  is  refused  this  right,  he  may  have  his 
action,  even  though  the  person  for  Avhom  he 
proposed  to  vote  should  chance  to  be  elected. 
Ashbv  V.  White,  2  Ld.  Raym.  938.  So,  if  a 
sheriff  neglect  to  return  an  execution,  the  cred- 
itor may  have  his  action  for  nominal  damages, 
although  no  damage  appeared  to  have  resulted 
from  the  neglect.  Kidder  v.  Barker,  18  Yt.  4.")4. 
In  the  case  of  Clifton  v.  Hooper.  6  Adol.  tS:  E. 
(N.  S.)  4Ci8,  in  an  action  for  not  executing  a  ca. 
sa.,  the  jury  found  the  defendant  in  default, 
hut  that  the  plaintiff  had  sustained  no  damage, 
and  still  judgment  was  given  for  the  plaintiff 
for  nominal  damages.  Lord  Denman,  in  that 
case,  said  'that  Avhere  a  clear  right  of  a  party 
was  invaded,  in  consequence  of  another's  brei'ich 
of  duty,  he  miTst  be  entitled  to  an  action  against 
that  party  for  some  amount,  and  that  there  was 
no  authority  to  the  contrary.' 


'  In  Asliby  v.  White,  2  Ld.  Raym.  938,  it  is  said 
by  Lord  Ilolt  'that  every  injury  to  a  right  im- 
ports a  damage  in  the  nature  of  it,  though  there 
be  no  pecuniary  loss.'  See,  also.  Barker  v. 
Green,  2  Bing.  317.  The  case  of  AVilliams  v. 
Mostyii.  4  Mees.  &  W.  145,  is  not  in  conflict 
Avitli  Clifton  V.  Hooper.  In  that  case  the  dis- 
tinct i(jii  between  mesne  and  final  process  is  well 
taken.  In  the  case  of  mesne  process,  no  right 
of  the  creditor  is  violated  by  an  escape,  unless 
he  is  delayed  in  his  suit  therel)y.  or  has  sus- 
tained actual  damage.  The  creditor,  it  is  ssiid 
in  that  ca.se,  simply  had  the  right  to  have  the 
sheriff  keep  the.  prisoner  ready  to  be  removed  at 
any  time  the  plaintiff  miglit  elect,  by  habeas 
corpus,  into  tlie  superior  court,  there  to  be  char- 
g(Ml  with  a  declaration,  or  to  be  declared  against 
as  in  the  custody  of  the  sheriff".  The  right  of 
the  plaintiff  Avas  correlative  to  the  duty  of  the 
sheriff",  and,  unless  the  plaintiff  Avas  delayed  in 
his  suit  by  reason  of  the  escape,  no  right'of  his 
had  been  violated;  but,  if  delayed,  though  for 
ever  so  .short  a  time,  a  right  had  been  violated, 
and  he  has  his  action.  See,  also.  Cady  v.  Hunt- 
ington, 1  N.  H.  1.38.  So,  in  Young  v.  Spencer. 
10  Barn.  &  C.  145,  the  action  was  by  the  per- 
son who  had  the  reversionar.v  interest  against  a 
lessee,  and  the  court  refused  to  allow  nominal 
damages  for  a  wrongful  act  of  the  lessee.  wJiich 
did  not  injure  the  estate  in  reversion.  Here, 
also,  no  right  of  the  reversioner  was  violated. 
A  legal  right  must  be  violated,  and  a  damage 
ensue;  but  actual.  perceptil)le  damages  are  not 
indispensable,  and  they  Avill  be  presunuMl  to  fol- 
low. Embrey  v.  Owen,  G  Exch.  o.").";,  372;  Wil- 
liams V.  Esling.  4  Barr,  4S(>.  The  maxim.  'De 
minimis  non  curat  lex,'  has  been  applied  to 
claims  for  tithes,  where  the  quantity  Avas  small, 
and  involuntarily  left  upon  the  ground  in  the 
process  of  raking;  yet,  if  there  is  a  fraud,  or  an 
intention  to  deprive  the  person  of  his  right,  the 
maxim  will  not  be  applied  to  cut  off  his  right 
of  recovery,  though  the  quantitv  be  small,  and 
in  Glanvill  v.  Stacey,  G  Barn.'  &  C.  .543,  the 
plaintiff  had  a  judgment  on  his  verdict  for  three 
shillings,  and  in  Seneca  Road  Co.  v.  Auburn 
Railroad  Co.,  5  Plill.  175.  it  is  said  the  maxim, 
'De  minimis,'  etc.,  is  never  applied  to  a  positive 
and  wrongful  invasion  of  another's  property; 
and  I  apprehend  it  may  at  least  be  safe  to  say 
it  should  never  in  such  cases  be  applied  to  cut 
off  a  recovery,  Avhere  the  positive  and  Avrongful 
act  causes  damages  which  can  be  fairly  valued. 
The  damage  done  to  the  plaintiff's  property  by 
cutting  his  thongs,  which  fastened  the  bands 
together,  though  'considerably  worn,  and  of 
small  A'alue,'  could  lie  estimated,  and  Ave  can- 
not say  that  he  shall  not  recover  tliem.  In  Paul 
v.  Slason.  22  Yt.  235,  the  jury  were  charged 
that,  if  they  found  that  it  (the  pitchfork)  was 
merely  used  for  a  portion  of  a  day  in  removing 
the  plaintiff's  property,  there  attached,  and  Avas 
left  where  it  was  found,  so  that  the  plaintiff  had 
it  again,  and  that  it  was  not  injured  by  its  use. 
they  Avere  not  bound  to  give  the  plaintiff  dam- 
ages for  such  use.  The  supreme  court,  it  is 
true,  athrmed  this  ruling,  and  applied  the  max- 
im, 'De  minimis  non  curat  lex,'  to  the  case.  It 
may  be  remarked  that  in  that  case  the  pitchfork 
Avas  used  in  removing  the  plaintift"'s  ha.v.  wliich 
had  been  attached,  and  which  was  to  be  re- 
moved at  his  expense;  and  it  may,  in  one  sense, 
be  said  that  the  fork  was  used  in  the  business 
of  the  plaintiff,  and  for  his  benefit,  and  the  jury 
must  have  found  that  the  plaintiff  had  his  fork 
again,  and  that  it  had  not  been  injured  by  the 
officer  in  removing  the  ha.v.  We  apprehend  that 
case  does  not  Avarrant  the  charge  of  the  court 
in  the  case  at  bar.  Both  the  injury  and  the 
damage  AA-ere  too  insignificant  to  be  made  the 
ground  of  an  action.  Indeed,  the  jury  must 
liaA'e  found  there  Avas  no  actual  damage,  and 
the  court  would  not  imply  a  damage  from  such 
a  taking,  though  perhaps  it  might  technically 
haA'e  constituted  a  Avrongful  taking  by  the  offi- 
cer, though  taken  to  be  used  in  removing  the 
plaintiff's  hay,  and  for  the  expense  of  AA'hich  the 
plaintiff  was  to  be  charged." 


12 


NOMINAL  AND  SUBSTANTIAL  DA^LVGES. 


WARTMAN  V.  SWINDELL. 

(25  Atl.  356,  54  N.  J.  Law,  589.) 

Court  of  Errors  and  Appeals  of  New  Jersey. 
Nov.  14.  1892. 

Error  to  circuit  court,  Camdeu  county;  be- 
fore Justice  Garrison. 

Action  by  John  W.  Wartman  against  Wil- 
liam H.  Swindell  for  damages.  Judgment 
for  defendant.     PlaintifC  appeals.     Reversed. 

Jobn  W.  Wartman,  pro  se.  'Scovel  &.  Har- 
ris, for  defendant  in  error. 

VAN  SYCKEL,  J.  In  September,  1891,  the 
clerk  of  the  plaintiff  in  error,  who  was  plain- 
tiff below,  drove  the  horse  and  carriage  of 
the  plaintiff  to  the  sheriff's  office  in  Camden, 
and  there  tied  the  horse  to  a  post  at  the  curb 
line  of  the  street.  While  the  clerk  was  in 
the  sheriff's  office,  the  lines,  worth  about 
three  dollars  or  four  dollars,  were  taken  from 
the  horse  by  the  defendant  in  error,  and  the 
clerk  was  left  without  the  means  of  driving 
the  horse.  He  thereupon  demanded  the  lines 
of  the  defendant,  w'ho  refused  to  return  them 
to  him.  The  clerk  then  went  to  the  office  of 
the  plaintiff,  and  informed  him  of  the  occur- 
rence, and  was  instructed  to  return  to  the 
courthouse,  and  again  demand  the  lines  of 
the  defendant.  A  second  demand  was  made, 
and  the  defendant  refused  to  comply  with  it. 
Thereupon  the  plaintiff  brought  suit  against 
the  defendant  for  damages.  On  the  trial  of 
the  cause  in  the  court  below  the  plaintiff, 
after  proving  the  facts  above  stated,  rested 
his  case.  On  the  cross-examination  of  the 
plaintiff's  clerk  it  appeared  that  the  defend- 
ant said  to  him  that  the  plaintiff  had  taken 
a  small  article  from  the  defendant,  and  the 
clerk,  in  reply  to  the  question  whether  the 
defendant  did  not  take  the  lines  by  way  of  a 
joke,  said  he  "supposed  perhaps  he  did  it  in 


a  joke,  but  he  did  not  know  w^hat  it  was  done 
for  when  it  was  first  done."  When  the  plain- 
tiff had  rested  his  case,  the  trial  judge  said: 
"If  the  defendant  will  make  a  tender  of  these 
lines  now,  I  will  dismiss  this  case  upon  the 
ground  de  minimis  uon  curat  lex."  The  de- 
fendant thereupon  tendered  the  lines  to  the 
plaintiff,  and  the  court  dismissed  the  jury 
from  the  further  consideration  of  it.  This 
disposition  of  the  case  is  the  error  complained 
of  in  this  court.  The  trial  judge  acted  upon 
the  idea  that  the  conduct  of  the  defendant 
was  intended  as  a  joke,  and  that  the  matter 
involved  was  too  insignificant  to  claim  the  at- 
tention of  the  court.  If  the  defendant  relied 
upon  the  fact  that  he  removed  the  lines  by 
way  of  a  joke,  it  was  a  question  for  the  jury 
to  decide  whether  the  parties  had  been  per- 
petrating practical  jokes  upon  each  other  in 
such  a  way  that  the  defendant  had  a  right  to 
believe  that  the  plaintiff  would  accept  this 
act  as  a  joke.  That  question  could  not  legal- 
ly be  taken  from  the  jury,  and  settled  by  the 
court;  nor,  in  my  judgment,  was  the  maxim 
de  minimis  non  curat  lex  applicable  to  this 
case.  In  Seneca  Road  Co.  v.  Auburn  &  R.  R. 
Co.,  5  Hill,  175,  Mr.  Justice  Cowen  said  this 
maxim  is  never  applied  to  the  positive  and 
wrongful  invasion  of  another's  property.  The 
right  to  maintain  an  action  for  the  value  of 
property,  however  small,  of  which  the  owner 
is  wrongfully  deprived,  is  never  denied.  A 
trespass  upon  lands  is  actionable,  although 
the  damage  to  the  owner  is  inappreciable. 
The  celebrated  Six  Cin-penters'  Case,  reported 
in  8  Coke,  432,  involved  a  trifiing  sum.  But 
as  the  case  in  hand  stood  at  the  close  of  the 
plaintiff's  testimony,  I  am  not  prepared  to 
say  that  a  verdict  for  substantial  damages 
W'ould  not  have  been  justifiable.  In  my  opin- 
ion, the  trial  court  erred  in  dismissing  this 
case,  and  the  judgment  below  should  there- 
fore be  reversed. 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


13 


DAYTON  V.  PARKE  et  al.i 

(37  N.  E.  (>42,  142  N.  Y.  391.) 

Court  of  Appeals  of  New  York.    June  5,  1894. 

Appeal  from  supreme  court,  general  term, 
second  department. 

Action  by  William  B.  Dayton  against  Wil- 
liam A.  Parke  and  others  to  recover  freight 
and  demurrage  charges.  From  a  judgment 
of  the  general  term  (22  N.  Y.  Supp.  G13)  mod- 
ifying a  judgment  for  plaintiff,  defendants 
appeal.     Modified. 

Edward  M.  Shepard,  for  appellants.  Thos. 
J,  Ritch,  Jr.,  for  respondent. 

PECKHAM,  J.  The  trial  court  directed 
a  .verdict  for  the  amovmt  of  the  plaintiff's 
claim  for  freight,  together  with  six  cents 
damages,  for  demurrage,  and  the  judgment 
"^was  thus  duly  entered,  with  costs.  Both 
parties  appealed,  and  the  general  term,  upon 
plaintiff's  appeal,  modified  the  judgment  by 
increasing  the  amount  allowed  plaintiff  for 
demurrage  from  6  cents  to  !f312,  and  it  af- 
firmed the  judgment  upon  defendants'  ap- 
peal. The  defendants  have  appealed  here 
from  the  judgment  as  so  modified,  and  also 
from  several  orders  relating  to  costs,  and  to 
the  amendment  of  the  judgment  as  to  the 
amount  that  should  be  directed  upon  the 
plaintitt"'s  claim  for  freight.  [The  court  then 
held  defendants  liable  for  freight,  but  not  for 
demurrage,  as  such,  under  the  terms  of  the 
bill  of  lading.] 

We  come,  then,  to  the  question  of  liability 
of  defendants,  as  consignees  and  presumed 
owners  of  the  ties,  for  the  payment  of  dam- 
ages in  the  nature  of  demurrage  for  an  im- 
proper detention  of  the  vessel.  On  this 
branch  the  plaintiff  has  wholly  failed  to 
prove  any  damage  whatever.  Because  the 
defendants  might  have  been  liable  to  pay 
those  damages  which  the  plaintiff  might 
have  proved  if  he  had  sustained  them  is  no 
reason  for  allowing  the  plaintiff  to  recover 
even  a  nominal  sum  by  way  of  damages, 
w^hen  no  amount  of  damages  whatever  has 
been  proved.  The  plaintiff'  chose  to  plant 
himself  upon  his  alleged  right  to  recover  "de- 
murrage," technically  so  called;  and  for  that 
purpose  he  refers  to  the  bill  of  lading  and 
charter  party  as  forming  a  contract  on  de- 
fendants'  part  to   pay   a   certain   sum   daily 

1  Portion  of  opinion  omitted. 


for  each  day's  detention  proved  beyond  the 
number  allowed  in  the  charter  party.  ^  This 
claim,  as  we  have  seen,  he  cannot  make 
good,  and  there  's  no  reason  why  he  should 
be  permitted  to  recover  even  a  small  sum 
tmproved,  especially  when  the  effect  might 
be  to  saddle  costs  of  the  htlgation,  otherwise 
payable  by  plaintiff",  upon  the  shoulders  of 
the  defendants.  The  plaintiff  says  he  w^as 
entitled  to  a  recovery  of  six  cents,  if  for  no 
other  reason  than  to  establish  a  principle. 
I  see  no  principle  that  is  established  by  such 
a  judgment.  In  an  action  of  trespass  upon 
real  estate,  where  title  comes  in  question, 
it  is  easily  understood  that  a  verdict  of  six 
cents  may  be  of  the  greatest  value  to 
plaintiff"  as  establishing  his  title  to  the  land, 
so  far  at  least  as  the  defendant  is  concerned. 
No  such  principle  obtains  or  can  obtain  in 
such  an  action  as  this.  The  cause  of  action 
of  plaintiff"  in  such  a  case  consists  of  two 
branches,— one  to  establish  an  unjust  or  un- 
reasonable detention  by  defendant,  and  the 
other  to  show  the  damages  which  plaintiff" 
sustains  by  reason  of  such  detention.  A 
failure  to  prove  either  fact— unlawful  deten- 
tion or  damage  ensuing— is  a  failure  to  prove 
a  cause  of  action;  and  a  plaintiff,  in  fail- 
ing to  prove  any  damage  whatever,  is  not 
entitled  to  a  judgment  for  nominal  damages. 
It  is  not  a  case  where  the  law"  will  presume 
damage.     It  is  a  fact  to  be  proved. 

We  think  the  best  that  can  be  done  in  this 
case  is  to  reverse  the  judgment,  and  grant  a 
new  trial,  costs  to  abide  the  event,  unless  the 
plaintiff"  shall  consent  to  reduce  the  judg- 
ment by  striking  out  any  recovery  whatever 
for  demurrage.  In  case  such  consent  shall 
be  given,  then  judgment  shall  stand  for  the 
reduced  amount,  subject  to  any  further  re- 
duction, if  any  shall  be  allowed  by  the  deci- 
sion of  the  court  upon  defendants'  applica- 
tion for  costs  by  reason  of  the  off'er  made  by 
them.  No  costs  on  this  appeal  are  allowed 
to  either  party  in  case  the  judgment  is  af- 
firmed by  consent  of  plaintiff  as  reduced,  and 
in  that  case  the  order  denying  motion  to 
modify  verdict  is  affirmed.  The  order  deny- 
ing defendants'  application  for  taxation  of 
costs  must,  in  event  of  affirmance  of  the 
judgment  by  consent,  be  reversed,  with  leave 
to  defendants  to  renew  such  motion  upon  the 
facts  as  now  existing.  Judgment  will  ac- 
cordingly be  entered  in  accordance  with  this 
opinion.     All  concur.     Judgment  accordingly.- 


14 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


JONES  V.  KING. 
(33  Wis.  422.) 
Supreme  Court  of  Wisconsin.    June  Term,  1873. 
.T.     F.     McMulleu.     for     appellant.     E.     L. 
Browne,  for  respondent. 

LYON,   J.     This  is   an  action   for   slander. 
The  complaint  charges  the  speakins;  by  the 
■defendant,  to  and  concerning  the  plaintiff,  of 
certain    slanderous    words,    imputing    to    the 
latter  the  committing  of  divers  criminal  of- 
fenses.    The  defendant,  by  his  answer,  denies 
the  speaking  of  some  of  the  slanderous  words 
set    out    in    the    complaint,    and    admits    the 
speaking  of  others  of  them,  and  alleges,  by 
way  of  mitigation,  that  the  plaintiff  provoked 
him.  by  charging  him  with  crime,  and  by  ap- 
plying to   him   grossly   insulting  epithets,   to 
litter  the  language  complained  of.     The  evi- 
dence  shows  that  the  parties   casually   met, 
and  engaged  in  a  conversation,  which  at  first 
was   reasonably   good-natvired,    but   soon   be- 
came an  angry  verbal  altercation,  in  which 
vile  epithets  and  charges  of  crime  were  freely 
hurled  by  each  at  the  other.     It  will  serve 
no  useful  purpose  to  state  the  testimony  in 
■detail,  or  to  inquire  which  of  the  parties  was 
most  to  blame.     It  is  better  for  them  both 
that  we  forbear  to  spread  upon  this  record  the 
particulars    of    their    foolish   and    disgraceful 
encounter.     Some  objections  on  behalf  of  the 
plaintiff  were  made  to  the  admission  of  tes- 
timony, and  overruled;    but  they  relate  main- 
ly to  unimportant  matters,  and  are  not  men- 
tioned in  the  brief  of  counsel  for  the  plaintiff. 
Considering  that  they  are  abandoned,  no  fur- 
ther' notice  Avill  be  taken  of  them.     No  valid 
exception    was   taken    to    the    charge   of   the 
court,  and  no  objection  is  made  in  the  argu- 
ment  to   its   correctness.     It   should   also   be 
stated  that  considerable  testimony  was  given 
tending  to  impeach  the  character  of  the  plain- 
I  tiff.     The  jury  returned  a  verdict  for  the  de- 
I  fendant,  upon  which,   after  a  motion   for  a 
•new  trial  had  been  overruled,  judgment  was 
rendered  dismissing  the  complaint,  with  costs. 
The  plaintiff  appeals,  and  his  cormsel  claims 
that  there   should   have  been   a   verdict   for 
nominal   damages,   at  least,   which,    while   it 
would   have   only   carried   nominal   costs   for 
the  plaintiff,  would  have  defeated  the  defend- 
ant's rights  to  recover  costs.    The  claim  of  the 
learned    counsel    is    doubtless    correct.     The 
speaking  of  words  by  the  defendant,  to  and 
■concerning   the  plaintiff,   imputing  to   him   a 
criminal  oft'ense,  as  charged  in  the  complaint, 
is  admitted  by  the  answer.     The  plaintiff"  was 
therefore    entitled   to   a  verdict   for   at   least 
nominal    damages,    without   introducing    any 
testimony,   and  without  regard  to   the   testi- 
mony which  was  introduced  on  the  trial;    and 
such  verdict  would  have  defeated  the  recov- 
ery of  costs  by  the  defendant.     It  should  be 
observed  that  the  circuit  judge  was  not  asked 
to  charge,  and  did  not  directly  charge,  the 
jury  that  the  plaintiff  was  entitled  to  a  ver- 
•dict  for  some  damages.     He  did  not  say  to 


the  jury  (as  he  well  might)  that  the  answer 
of  the  defendant  admits,  and  also  that  the  un- 
disputed testimony  proved,  that  actionable 
words  were  spoken  by  the  defendant  to  and 
concerning  the  plaintiff",  as  alleged  in  the 
complaint.  But  the  judge,  in  his  charge, 
more  than  once  refers  to  the  speaking  of 
such  words,  hypothetically.  His  language  is, 
"If  the  words  Avere  spoken,"  and  the  like. 
Hence  the  verdict  Is  not  in  disregard  of  the 
instructions  of  the  court.  It  must  also  be 
observed  that  evidence  of  express  malice  on 
the  part  of  the  defendant  seems  to  be  entirely 
wanting  in  the  case.  In  view  of  this  fact, 
and  of  the  uncontradicted  testimony  on  cer- 
tain other  points  (which  it  is  unnecessary  to 
specify),  we  are  perfectly  well  satisfied  that 
the  plaintiff  should  have  recovered  no  more 
than  nominal  damages.  Indeed,  we  do  not 
understand  his  counsel  to  claim  that  he  is  en- 
titled to  anything  beyond  that.  We  have  be.- 
fore  us,  then,  an  action  for  slander,  in  which 
the  verdict  was  for  the  defendant,  but  should 
have  been  for  the  plaintiff  for  nominal  dam- 
ages only,  and  in  which  it  is  not  claimed  that 
any  rule  of  law  has  been  violated  by  the 
court,  in  admitting  or  rejecting  testimony,  or 
in  the  instructions  to  the  jury,  or  that  the 
jury  have  disregarded  the  instructions  of  the 
court,  or  have  behaved  improperly.  From 
these  data  we  are  to  determine  whether  the 
plaintiff  is  entitled  to  a  new  trial  of  his  ac- 
tion. 

In  Laubenheimer  v.  Mann,  19  Wis.  519,  it 
was  held  that  a  judgment  of  nonsuit,  al- 
though erroneous,  will  not  be  reversed,  if  it 
appear  that  the  plaintiff"  is  only  entitled  to 
nominal  damages,  if  the  case  be  one  in  which 
the  defendant  would  recover  costs,  notwith- 
standing there  is  a  judgment  for  nominal  dam- 
ages rendered  against  him.  That  was  an  ac- 
tion for  a  penalty,  and  was  within  the  juris- 
diction of  a  justice  of  the  peace.  Hence,  had 
the  plaintiff  recovered  nominal  damages,  the 
defendant  would  have  been  entitled  to  costs, 
the  same  as  upon  a  nonsuit.  In  Mecklem  v. 
Blake,  22  Wis.  495,  which  was  an  action  to 
recover  damages  for  alleged  breaches  of  the 
covenants  of  seisin  and  against  incumbrances 
in  a  deed  of  land,  the  court  followed  the  de- 
cision in  Laubenheimer  V.  Mann,  and  refused 
to  reverse  a  judgment  dismissing  the  com- 
plaint, although  it  appeared  that  the  plaintiff 
was  entitled  to  recover,  but  only  to  recover 
nominal  damages.  The  fact  was  entirely 
overlooked  that  such  damages,  in  that  action, 
would  have  entitled  the  plaintiff  to  costs. 
Hence,  in  Eaton  v.  Lyman.  30  Wis.  42  (which 
was  also  an  action  on  the  covenants  con- 
tained in  a  conveyance  of  real  estate),  Meck- 
lem V.  Blake  was  overruled  as  to  the  point 
we  are  considering;  and,  it  appearing  that  the 
plaintiff"  was  entitled  to  nominal  damages,  we 
reversed  a  judgment  of  nonsuit  against  them. 
We  are  entirely  satisfied  with  this  decision, 
and  believe  that  it  estal)lishes  the  correct  rule 
in  all  actions  sounding  in  contract  to  which 
it  is  applicable.     But  there  is  a  class  of  ac- 


NOMINAL  AND  SUBSTANTIAL  DAMAGES. 


15 


tions  denominated  in  the  books  "liard  ac- 
tions," to  which  a  different  rule  has  been 
appHed  in  numerous  cases.  Of  these  actions, 
and  of  the  rules  relating  to  new  trials  which 
are  applicable  to  them,  a  learned  author  says: 
'  "Hard  actions  strictly  include  only  civil  pro- 
ceedings, involving  in  their  nature  some  pe- 
culiar hardship,  arising  from  the  odium  at- 
tached to  the  alleged  offense,  or  the  severity 
of  the  punishment  which  the  law  iuflicts  on 
the  offender  in  the  shape  of  damages.  To 
this  belong  most  actions  arising  ex  delicto. 
Trespass,  slander,  libel,  seduction,  malicious 
prosecution,  criminal  conversation,  deceit, 
gross  negligence,  actions  upon  the  statute,  or 
qui  tam  actions,  prosecuted  by  informers,  and 
penal  actions,  prosecuted  by  special  public 
bodies  or  the  public  at  large,  are  ranged 
under  this  head.  But  as  they  partake,  less 
or  more,  in  their  nature  and  effect,  of  prose- 
cutions for  criminal  offenses,  the  rules  that 
govern  in  granting  or  refusing  new  trials,  and 
the  reason  of  those  rules,  are  drawn  from 
criminal  cases,  rather  than  civil."  1  Grah.  & 
W.  New  Ti".  p.  503,  c.  14.  It  is  scarcely  nec- 
essary to  say  that  in  criminal  prosecutions, 
after  trial  and  verdict  for  the  defendant,  a 
new  trial  is  never  granted.  But  the  rule  is 
not  as  broad  in  the  class  of  civil  actions  men- 
tioned above;  yet  in  those  actions  it  is  much 
broader  in  favor  of  defendants  than  in  other 
civil  actions.  In  the  volume  last  above  cited, 
we  find  the  following  statement:  "It  is  a 
general  rule,  with  but  few  exceptions,  that  in 
penal,  and  what  are  denominated   'hard  ac- 


tions,' the  court  will  not  set  aside  the  verdict, 
if  for  the  defendant,  although  there  may  have 
been  a  departure  from  strict  law  in  the  lind- 
ing  of  the  jury."  Page  353.  And,  again,  on 
page  523:  "In  hard  actions,  a  new  trial  Avill 
not  be  granted,  especially  if  the  verdict  be  for 
the  defendant,  although  against  evidence,  nor 
unless  some  rule  of  law  be  violated."  The 
author  proves  the  correctness  of  the  princi- 
ples and  rules  thus  laid  down  by  him,  by 
references  to  large  numbers  of  cases,  both 
English  and  American;  and  he  satisfactorily 
demonstrates  that,  in  a  case  like  the  present 
one,  a  new  trial  cannot  be  granted  without 
a  violation  of  well-settled  rules  of  law.  Per- 
haps as  satisfactory  a  statement  of  the  law 
on  this  subject  as  can  be  found  is  contained 
in  Jarvis  v.  Hatheway,  3  Johns.  180.  Judge 
Spencer  there  says:  "In  penal  actions,  in  ac- 
tions for  a  libel  and  for  defamation,  and  other 
actions  vindictive  in  their  nature,  unless  some 
rule  of  law  be  violated  in  the  admission  or 
rejection  of  evidence,  or  in  the  exposition  of 
the  law  to  the  jury,  or  there  has  been  tam- 
pering with  the  jury,  the  court  will  not  give 
a  second  chance  of  success."  Add  to  these 
other  conditions  which  exist  in  this  case,  to 
wit,  that,  at  the  most,  the  plaintiff  is  only  en- 
titled to  recover  nominal  damages,  and  that 
the  jury  have  not  disregarded  the  instructions 
of  the  court,  and  there  can  be  no  doubt  what- 
ever that  the  motion  for  a  new  trial  was  prop- 
erly denied  by  the  court  below.  Our  conclu- 
sion is  that  the  judgment  of  the  circuit  court 
must  be  affirmed.     Judgment  affirmed,   ; 


16 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


SPOKANE   TRUCK   &  DRAY   CO.   v.   HOE- 
FER  et  ux. 

(25  Pac.  1072,  2  Wash.  45.) 

Supreme  Court  of  Washington.     Feb.  5,  1891. 

Appeal  from  superior  court,  Spoliane  coun- 
ty. 

Turner  &  Graves,  for  appellant.  Jesse  Ar- 
tliur,  for  appellees. 

DUNBAR,  J.  The  plaintiff  Mina  Hoefer 
had  her  arm  broken,  and  was  otherwise  in- 
jured, by  the  falling  of  a  safe,  which  was 
being  hoisted  by  the  defendant  into  a  five-sto- 
ry brick  building,  known  as  the  "Eagle 
Block,"  in  the  city  of  Spokane  Falls.  Plain- 
tiff had  been  to  the  office  of  her  physician,  in 
the  second  story  of  said  building,  where  she 
was  accustomed  to  go  for  treatment  daily, 
and  while  returning  from  such  a  visit  on  the 
7th  day  of  February,  1890,  she  passed  down 
the  stairway,  and  into  the  court  or  opening 
imder  the  hoisted  safe  just  as  it  fell.  The 
said  stairway  started  from  the  entrance  of 
said  court  or  well  on  Stevens  street,  and  land- 
ed on  the  north  end  of  the  covered  way  on 
the  second  floor  of  the  rear  building.  Dr. 
Thiel's  office,  where  Mina  Hoefer  had  been 
just  before  she  was  injured,  was  in  a  room 
on  the  second  floor  of  the  Stevens-Street 
building,  and  was  the  first  room  north  of  the 
Stevens-Street  entrance.  There  was  one  oth- 
er and  perhaps  main  entrance  to  the  building 
from  Riverside  avenue,  and  it  is  claimed  by 
the  defendant  that  the  court  or  well  on  that 
side  of  the  block  was  used  for  hoisting  heavy 
articles  to  the  upper  stories  of  the  building, 
and  was  not  generally  employed  by  the  pub- 
lic as  an  entrance  to  the  upper  stories  of  the 
block;  yet  we  think  it  fairly  appears  that 
the  stairAVay  leading  from  Stevens  street  was 
in  common  use,  and  that  the  plaintiff  had  a 
right  to  use  it  in  going  to  and  from  the  office 
of  her  physician.  Suit  was  brought  against 
the  defendant,  alleging  damages  in  the  sum 
of  15,000.  The  case  was  tried  by  a  jury,  and 
a  verdict  rendered  for  plaintiffs  for  !J;2,.500, 
and  a  judgment  rendered  for  the  same,  from 
which  judgment  an  appeal  was  taken  to  this 
court. 

The  defendant  assigns  as  error  the  follow- 
ing instructions  to  the  jury,  given  by  the 
court  upon  its  own  motion:  "Furthermore, 
gentlemen,  the  plaintiffs  claim  in  this  action 
that  the  defendant  was  not  only  guilty  of  neg- 
ligence, by  reason  of  which  the  plaintiff  was 
damaged,  but  was  guilty  of  gross  negligence, 
and,  in  case  you  find  they  were  guilty  of  gross 
negligence,  a  different  rule  of  damages  ap- 
plies to  the  case."  "  'Gross  negligence'  means 
a  wanton  and  reckless  disregard  of  the  rights 
of  other  persons  taken  into  consideration  with 
the  facts  in  the  case;  and,  in  case  you  find 
that  it  was,  then,  in  addition  to  the  actual 
damages  which  you  may  find  for  plaintiff, 
you  may  assess  a  sum  which  the  law  calls 
'exemplary  damages.'  That  means  a  damage 
to  deter  others  from  being  wanton  and  reck- 


less of  the  rights  of  others."  Also  the  fol- 
lowing instructions  asked  by  plaintiffs:  "If 
the  jury  believe  from  all  the  evidence  that  the 
agent  and  emjjloyes  of  defendant,  the  Spo- 
kane Truck  &  Dray  Company,  in  placing  the 
beams  and  planks  across  the  well-hole,  in 
plaintiff's'  petition  mentioned  as  being  in  the 
Eagle  block,  in  the  city  of  Spokane  Falls,  and 
in  any  other  way,  in  the  construction  and 
preparation  of  the  appliances,  for  hoisting  the 
safe  up  and  through  said  well-hole,  and,  in 
the  hoisting  of  the  same,  failed  to  use  such 
care  as  the  nature  of  the  employment,  and 
the  situation  and  circumstances  surrounding 
the  same,  required  of  a  prudent  person,  hav- 
ing had  experience,  and  skilled  in  such  or 
similar  work,  and  that,  by  reason  thereof, 
said  beam  and  planks,  and  other  appliances, 
in  the  attempt  to  hoist  said  safe,  gave  way  or 
were  brolcen,  and  fell  down  through  said  well- 
hole,  striking  plaintiff  Mina  Hoefer,  breaking 
her  arm,  and  otherwise  injuring  her,  they 
should  find  for  plaintiff",  assessing  the  dam- 
age, if  any,  at  such  sum  as  they  find  she  has 
sustained,  not  exceeding  $5,000,  the  amount 
claimed  in  the  complaint."  "The  jury  is  in- 
structed that,  if  they  find  for  plaintiff'  imder 
tlie  preceding  instruction,  in  assessing  the 
damage  they  have  a  right  to  consider  and  al- 
low for  the  loss  of  the  personal  services  of 
plaintiff  Mina  Hoefer  to  her  family;  her  men- 
tal suffering  and  bodily  pain;  the  extent  of 
probable  duration  of  the  injury;  and  the  pro- 
spective loss  of  service  occasioned  thereby;  al- 
so the  expense  incurred  for  medicine,  nurs- 
ing, etc.,  and  such  reasonable  .doctor  bfil  as 
plaintiffs  were  obligated  to  pay."  "Should 
the  jury  find  for  plaintiffs  under  instruction 
No.  1,  and  also  find  that  defendant's  agents 
and  employes,  in  constructing  the  appliances 
for  hoisting  said  safe,  and  in  hoisting  the 
same,  were  guilty  of  gross  negligence,  that  is, 
exercised  so  little  care  as  to  evince  a  reckles* 
and  willful  indiff'erence  to  the  safety  of  plain- 
tiff' Mina  Hoefer,  and  aU  others  using  said  en- 
trance and  stairway,  then  they  niay  find  for 
plaintiff's  exemplary  damages;  that  is,  dam- 
ages in  money  by  way  of  punishment,  in  ad- 
dition to  the  damages  they  may  find  under 
instruction  No.  2,  in  no  case  exceeding  in 
all  the  amount  of  §5,000  claimed  in  the  com- 
plaint." The  court  refused  to  give  the  fol- 
lowing instruction  asked  by  the  defendant^ 
which  refusal  defendant  also  assigns  as  er- 
ror: "If  you  find  by  the  evidence  that  the 
injury  occurred  by  defects  in  the  Avail,  caused 
by  the  elements,  and  such  defects  were  not 
discovered  by  ordinary  care,  in  the  absence  of 
further  negligence  on  the  part  of  the  de- 
fendant, the  plaintiff'  cannot  recover."  So 
far  as  the  instruction  is  concerned  that  was 
asked  for  by  defendant  and  refused  by  the 
court,  we  think  it  had  already  been  substan- 
tially given  by  the  court;  and  it  was  not  nec- 
essary to  repeat  it  in  another  form  of  words. 
The  court  had  already  instructed  the  jury 
that  "if  it  did  not  appear  by  a  preponderance 
of  testimony  that  this  injury  was  occasioned 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


17 


by  the  nogligenee  of  the  defendant,  that  it 
was  their  duty  to  find  for  the  defendant." 
Courts  sliould  not  be  called  upon  to  particu- 
larize by  referring  to  certain  portions  of  the 
testimony.  It  is  a  far  safer  rule  to  state  the 
law  governing  the  case  in  general  terms. 

It  is  claimed  by  the  defendant  that  the  lan- 
guage used  by  the  court  in  the  first  instruc- 
tion asked  by  plaintiffs  makes  the  defendant 
an  actual  insurer  of  the  safety  of  the  public, 
and  is  therefore  erroneous.  The  statement 
was  "that  the  defendant  was  bound  to  use 
such  care  as  the  nature  of  the  employment 
and  the  situation  and  circumstances  surround- 
ing the  same  required  of  a  prudent  person 
haying  had  experience,  and  skilled  in  such  or 
similar  work."  We  are  unable  to  see  how 
this  instruction  could  be  materially  modified. 
Undoubtedly  the  "nature  of  the  employment" 
must  be  taken  into  consideration.  If  it  is 
an  employment  Avhich  is  likely  to  endanger 
life  or  property,  certainly  a  greater  degree  of 
care  would  be  required  than  an  employment,- 
the  careless  performance  of  which  would  not 
ordinarily  result  in  injury  to  person  or  prop- 
erty. It  is  plain  that  "the  situation  and  cir- 
cumstances surrounding  the  employment" 
must  be  considered;  for,  applying  the  rvde 
to  a  case  of  this  cliaracter,  a  person  in  hoist- 
ing a  heavy  weight  in  an  unfrequented  place, 
in  no  way  connected  with  any  thoroughfare 
or  passage-way,  would  not  be  held  to  the 
same  degree  of  care  as  he  would  be  if  the 
work  were  being  done  in  a  public  thorough- 
fare, where  people  had  a  right  to  pass,  and 
were  actually  constantly  passing.  It  certain- 
ly cannot  be  gainsaid  that  "prudence"  should 
be  one  of  the  requisite  qualifications  of  a 
person  engaged  in  such  employment.  Nor 
must  his  qualifications  stop  here,  when  en- 
gaged in  a  business  which  is  liable  to  inju- 
riously affect  the  public;  for  he  might  be  an 
oi'dinarily  pnident  man,  and  yet,  if  he  had 
no  experience  or  skill  in  the  particular  work 
in  Avhich  he  is  engaged,  disastrous  results 
would  be  liable  to  follow.  Language  which 
is  not  technical  must  be  construed  by  its  or- 
dinarily accepted  meaning,  and  we  do  not 
think  that  the  language  employed  by  the 
court  could  be  so  construed  as  to  make  the 
defendant  an  insurer;  and  we  concur  with 
the  counsel  for  the  plaintiffs  that  it  states 
substantially  the  same  doctrine  as  the  quota- 
tion from  Shear.  &  R.  Neg.  §  47,  by  defend- 
ant, where  they  define  ordinaiy  care,  to  be 
"the  care  i:sually  bestowed  upon  the  matter 
in  hand  by  persons  accustomed  to  deal  with 
such  matters,  and  having  tlie  prudence  of 
the  general  class  of  society  to  which  the  per- 
son whose  conduct  is  in  question  belongs." 

We  next  pass  to  the  instruction  of  the  court 
both  upon  its  own  motion  and  upon  the  mo- 
tion of  the  plaintiffs  in  relation  to  punitive 
damages.  This  is  a  question  which  has  en- 
gaged the  earnest  attention  of  courts  and  au- 
thors. A  careful  investigation  of  the  discus- 
sion of  this  subject  by  such  noted  authors  as 
Greenleaf,  Sedgwick,  and  Parsons,  and  also 
•     LAW  DAM.2d  Ed.— 2 


other  eminent  text-writers,  and  by  numerous 
courts,  shows  a  wonderful  diversity  of  opin- 
ion on  this  interesting  subject.  The  weight 
of  authority,  especially  considering  the  older 
cases,  seems  to  be  in  favor  of  the  doctrine 
of  punitive  damages,  but  the  opposite  doctrine 
has  received  the  support  and  advocacy  of 
many  modern  Avriters,  and  the  judicial  sanc- 
tion of  many  modern  coiu'ts;  while  other 
courts  have  frankly  stated  their  repugnance 
to  the  doctrine,  yet  considered  themselve* 
bound,  by  former  decisions  in  their  respective 
states,  to  still  maintain  it,  appealing  to  the 
legislature  to  relieve  them  from  what  they 
believe  to  be  a  pernicious  practice.  In  this 
state  it  is  a  new  question,  and  the  court  ap- 
proaches its  investigation  untrammeled  by 
former  decisions,  free  to  accept  the  reasoning: 
which  most  strongly  appeals  to  its  judgment,, 
and  to  adopt  the  rule  which,  in  its  opinion,, 
will  simplify  judicial  proceedings,  and  lead  to 
the  least  embarrassing  complications  in  the 
administration  of  the  law,  and  the  determina- 
tion of  rights  thereunder.  And  this  desiretl 
ultimatum,  we  think,  will  best  be  attained  by 
adopting  the  inle  laid  down  by  Mr.  Greenleaf 
(volume  2,  §  253)  that  "damages  are  given  as- 
a  compensation  or  satisfaction  to  the  plain- 
tiff for  an  injury  actually  sustained  by  him' 
from  .the  defendant.  They  should  be  precisely 
commensurate  with  the  injury,  neither  more 
nor  less;  and  this  whether  it  be  to  his  per- 
son or  his  estate,"— although  it  is  stoutly 
maintained  by  so  eminent  an  author  as 
Mr.  Sedgwick  that  this  definition  is  too  limit- 
ed, and  that,  "wherever  the  elements  of 
fraud,  malice,  gross  negligence,  or  oppres- 
sion mingle  in  the  controversy,  the  law,  in- 
stead of  adhering  to  the  system  or  even  the 
language  of  compensation,  adopts  a  wholly 
different  rule.  It  permits  the  jury  to  give 
what  it  tenns  'punitive,'  'vindictive,'  or  'ex- 
emplary' damages;  in  other  words,  blends  to- 
gether the  interests  of  society  and  of  the  ag- 
grieved individual,  and  gives  damages  not 
only  to  recompense  the  sufferer,  but  to  punish 
the  offender."  1  Sedg.  Dam.  p.  38;  Id.  (7th. 
Ed.)  p.  53.  It  seems  to  us  that  there  are 
many  A^alid  objections  to  interjecting  into  a 
purely  civil  action  the  elements  of  a  criminal 
trial,  intermingling  into  a  sort  of  a  medley  or 
legal  jumble  two  distinct  systems  of  judicial 
procedure.  While  the  defendant  is  tried  for 
a  crime,  and  damages  awarded  on  the  theory 
that  he  has  been  proven  guilty  of  a  crime, 
many  of  the  time-honored  rules  governing 
the  trial  of  criminal  actions,  and  of  the  rights 
that  have  been  secured  to  defendants  in  crim- 
inal actions  "from  the  time  whereof  the  mem- 
oiy  of  man  runneth  not  to  the  contrary,"  ai'e 
absolutely  ignored.  Under  this  procedure  the 
doctrine  of  presumption  of  innocence,  until 
proven  guilty  beyond  a  reasonable  doubt, 
finds  no  lodgment  in  the  charge  of  the  court, 
but  is  supplanted  by  the  rule  in  civil  ac- 
tions of  a  preponderance  of  testimony.  The 
fallacy  and  unfairness  of  the  position  is  made 
manifest  when  it  is  noted  that  a  person  cart 


18 


COMrENSATOIiY  AND  EXEMPLARY  DAMAGES. 


be  convictod  of  a  crime,  the  penalty  for 
which  is  uulimited,  save  in  the  iiucertain 
judgment  of  the  jury,  and  fined  to  tliis  unlim- 
ited extent  for  the  benefit  of  an  individual 
wlio  has  already  been  fully  compensated  in 
damages,  on  a  smaller  weight  of  testimony 
than  he  can  be  in  a  criminal  action  proper, 
brought  for  the  benefit  or  protection  of  the 
state,  where  the  amount  of  the  fine  is  fixed 
and  limited  by  law;  and,  in  addition  to  this, 
he  may  be  compelled  to  testify  against  him- 
self, and  is  denied  the  right  to  meet  the  wit- 
nesses against  him  face  to  face  under  the 
practice  in  civil  actions  of  admitting  deposi- 
tions in  .evidence.  Exclusive  of  punitive  dam- 
ages, the  measure  of  damages  as  uniformly 
adopted  by  the  courts  and  recognized  by  the 
hiw  is  exceedingly  liberal  towards  the  injured 
party.  There  is  nothing  stinted  in  the  rule 
of  compensation.  The  party  is  fully  compen- 
sated for  all  the  injury  done  his  person  or 
his  property,  and  for  all  losses  Avhich  he  may 
sustain  by  reason  of  tlie  injury,  in  addition  to 
recompense  for  physical  pain,  if  any  has  been 
inflicted.  But  it  does  not  stop  here;  it  en- 
ters the  domain  of  feeling,  tenderly  inquires 
into  his  mental  sufferings,  and  pays  him  for 
any  auguisli  of  mind  that  he  may  have  expe- 
rienced. Indignities  received,  insults  borne, 
sense  of  shame  or  humiliation  endured,  lacer- 
ation of  feelings,  disfiguration,  loss  of  reputa- 
tion or  social  position,  loss  of  honor,  impair- 
ment of  credit,  and  every  actual  loss,  and 
some  which  frequently  border  on  the  imag- 
inary, are  paid  for  under  the  rule  of  compen- 
satory damages.  The  plaintiff  is  made  en- 
tirely whole.  The  bond  has  been  paid  in 
full.  Surely  the  public  can  have  no  interest 
in  exacting  the  pound  of  flesh.  Ordinarily 
the  administration  of  the  laws  is  divided  into 
two  distinct  jurisdictions,  the  civil  and  the 
criminal,  each  governed  by  rules  of  ijrocedure, 
and  by  rules  governing  the  admission  and 
weight  of  testimony  different  and  distinct 
from  the  other.  The  province  of  the  civil 
court  is,  as  its  name  indicates,  to  investigate 
civil  rights:  there  its  jurisdiction  ends,  or 
ought  to  end;  while  the  province  of  the  crim- 
inal court  is,  as  its  name  imports,  to  investi- 
gate and  punish  crime  and  restrain  its  com- 
mission. And  it  is  to  the  criminal,  and  not 
the  civil,  jurisdiction  that  society  looks  for  its 
protection  against  criminals.  The  object  of 
punishment  is  not  to  deter  the  criminal  from 
again  perpetrating  the  crime  on  the  particu- 
lar individual  injured,  but  for  the  protection 
of  society  at  large;  and  as  the  state  is  at  the 
expense  of  restraining  and  controlling  its 
criminals,  and  as  fines  are  imposed  for  the 
double  purpose  of  restraining  the  offender, 
and  of  reimbursing  the  state  for  its  outlay  in 
protecting  its  citizens  from  criminals,  we  are 
at  a  loss  to  know  by  what  process  of  reason- 
ing, either  legal  or  ethical,  the  conclusion  is 
reached  that  a  plaintiff  in  a  civil  action,  un- 
der a  complaint  which  only  asks  for  compen- 
sation for  injuries  received,  is  allowed  to  ap- 
propriate money  which  is  supposed  to  be  paid 


for  the  benefit  of  the  state.  It  is  to  be  pre- 
sumed that  the  state  has  fidly  protected  its 
own  interelsts,  or  as  fully  at  least  as  they 
could  be  protected  by  laws,  when  it  provides 
for  the  punishment  of  crime  in  its  criminal 
statutes,  and  hxes  the  line  at  a  sum  which  it 
deems  commensurate  with  the  crime  desig- 
nated; hence,  punitive  damages  cannot  be 
allowed  on  the  theory  that  it  is  for  the  bene- 
flt  of  society  at  large,  but  must  logically  be 
allowed  on  the  theory  that  they  are  for  the 
sole  benefit  of  the  plaintiff  who  has  already 
been  fully  compensated,  a  theory  which  is 
repugnant  to  every  sense  of  justice. 

Again,  while  jurors  should  be  the  judges 
of  the  character  and  weight  of  testimony, 
that  juflgmeut  should  be  exercised  under 
some  rule,  and  be  amenable  to  some  law,  so 
that  an  abuse  of  discretion  could  be  ascer- 
tained and  corrected;  but,  under  the  doc- 
trine of  punitive  damages,  where  the  whole 
question  is  left  to  the  unguided  judgment  of 
the  jury,  and  where,  under  the  very  nature 
of  the  doctrine,  no  measure  of  damages  can 
be  stated,  and  hence  no  limits  compelled, 
where  there  are  no  special  findings  provided 
for,  it  would  not  be  often  that  a  court  would 
be  warranted  in  interfering  with  a  verdict, 
if  indeed  it  could  do  so  at  all,  if  the  verdict 
fell  within  the  amount  asked  as  compensa- 
tory damages.  Take  the  case  at  bar  for 
instance,  and  the  court  has  no  way  of  ascer- 
taining whether  the  jury  found  that  the 
plaintiff  had  actually  been  damaged  to  the 
full  amount  of  ?2,.jOO,  or  whether  they  found 
her  actual  damages  to  be  !pr>00,  and  assessed 
the  other  .^2,000  by  way  of  punishment.  It 
seems  to  us  that  a  practice  which  leads  to  so 
nmch  confusion  and  uncertainty  in  the  admin- 
istration of  the  law,  and  that  is  always  lia- 
ble to  lead  to  injustice,  the  correction  of 
which  is  impracticable,  cannot  be  too  speedi- 
ly eradicated  from  our  system  of  jurispru- 
dence. In  this  connection,  we  quote  approv- 
ingly the  language  of  the  supreme  court  of 
Indiana  in  Stewart  v.  Maddox,  63  Ind.  51. 
Says  the  court:  "The  doctrine  of  exemplary 
or  punitive  damages  rests  upon  a  very  uncer- 
tain and  unstable  Ijasis.  It  is  almost  equiv- 
alent to  giving  the  jury  the  power  to  make 
the  law  of  damages  in  each  case;  and  in  a 
case  where  the  defendant  is  a  commanding, 
popular,  influential  person,  and  the  plaintiff 
of  an  opposite  character,  and  the  local  and 
temporary  excitement  of  the  time  happens 
to  be  in  favor  of  the  defendant,  the  jury  is 
apt  to  be  reluctant  in  giving  even  pecuniary 
compensation,  without  adding  anything  by 
way  of  exemplary  or  punitive  damages;  while, 
in  a  case  in  which  the  cliaracter  of  the  par- 
ties and  the  circumstances  are  reversed,  the 
jury  Avill  be  liable  to  push  their  powers  to 
an  unwarranted  and  unconscionable  extent, 
dangerous  to  justice  and  the  security  of  set- 
tled rights."  Says  the  covu't  in  Murphy  v. 
Hobbs.  7  Colo.  541,  5  Pac.  119:  "The  re- 
flecting lawyer  is  naturally  curious  to  account 
for  this  'heresy'  or  'deforndty,'  as  it  has  been 


COMPENSATORY  AND  EXEMPLAllY  DAMAGES. 


19 


termed.  Able  and  searching  investigations 
made  by  both  jvn-ists  and  writers  disclose  the 
following  facts  concerning  it,  viz.:  That  it 
was  entirely  unknown  to  the  civil  law;  that 
it  never  obtained  a  foothold  in  Scotland;  that 
it  finds  no  real  sanction  in  the  writings  of 
Blaclvstonc.  Ilanimond,  Coniyus,  or  Ruther- 
forth;  that  it  was  not  recognized  in  the  earlier 
English  cases;  that  the  supreme  courts  of 
New  Hampshire,  Massachusetts,  Indiana, 
Iowa,  Nebraska,  Micliigan,  and  Georgia  have 
rejected  it  in  whole  or  in  part;  that  of  late 
other  states  have  falteringly  retained  it  be- 
cause committed  so  to  do;  that  a  few  j^ears 
ago  it  was  correctly  said,  "At  last  accounts 
the  court  of  queen's  bench  was  still  sitting 
hopelessly  involved  in  the  meshes  of  what 
Mr.  Chief  .Justice  Quain  declared  to  be  "ut- 
terly inconsistent  propositions;"'  '  and  that  the 
rule  is  comparatively  modern,  resulting  in  all 
probability  from  a  misconception  of  impas- 
sioned language  and  inaccurate  expressions 
used  by  judges  in  some  of  the  earlier  English 
cases."  And  in  support  of  this  theory  the 
Colorado  court  quotes  Mr.  Justice  Foster  in 
Fay  V.  Parker,  53  N.  H.  342,  who  concludes 
a  discussion  of  the  expression  "smart  mon- 
ey" as  ui^ed  by  Grotius  and  jurists  contempo- 
rary with  that  author,  in  the  following 
language:  "It  is  interesting,  as  well  as  in- 
structive, to  observe  that  one  hundred  and 


twenty  years  ago  the  term  'smart  money'  was 
employed  in  a  manner  entirely  diftcn-eut  from 
the  modern  signiiication  which  it  has  obtain- 
ed, being  then  used  as  indicating  compensa- 
tion for  smarts  of  the  injured  person,  and  not, 
as  now,  money  requii-ed  by  way  of  punish- 
ment, and  to  make  the  wrong-doer  smart." 
Some  courts  have  held  that  it  was  in  viola- 
tion of  the  constitutional  guaranty  "that  no 
person  should  be  twice  put  in  j(!opardy  for 
the  same  offense."  where  the  criminal  code 
provided  a  punishment  for  the  same  oft'ense, 
and  some  have  restricted  or  limited  its  abro- 
gation to  cases  where  the  act  charged  to 
have  been  committed  was  made  punishable 
by  law;  but,  without  expressing  any  opinion 
on  the  constitutional  question,  we  believe  that 
the  doctrine  of  punitive  damages  is  unsound 
in  principle,  and  unfair  and  dangerous  in 
practice,  and  that  the  instruction  of  the  court 
on  the  subject  of  punitive  damages  was  erro- 
neous. With  this  view  of  the  law  it  is  not 
necessary  to  examine  the  further  objection 
urged  by  defendant,  "that  this  was  not  a 
proper  case  for  the  application  of  the  doc- 
trine of  punitive  damages."  The  judgment 
is  reversed,  and  the  case  remanded  for  a  new 
trial. 

ANDERS,  C.  J.,  and  HOYT,  SCOTT,  and 
STILES,  JJ.,  concur. 


20 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


LUCAS  V.   MICHIGAN  CENT.   R.  CO. 

(56  N.  W.  1039,  98  Mich.  1.) 

Supreme  Court  of  Michigan.    Dec.  4,  1893. 

Error  to  circuit  com't,  Wayne  county;  Cor- 
nelius J.  Reilly,  Judge. 

Action  by  Calvin  Lucas  against  the  Mich- 
igan Central  Railroad  Company  for  damages 
for  wi'ongful  ejection  from  defendant's  train. 
Judgment  for  plaintiff,  and  defendant  brings 
error.     Reversed. 

Henry  Russel,  (Ashley  Pond,  of  counsel,) 
for  appellant.  Dickinson,  Thurber  &  Stev- 
enson, for  appellee. 

McGRATII,  J.  Plaintiff  purchased  an  ex- 
cursion ticket  at  Dexter,  good  to  Detroit 
and  retm'n,  and  rode  to  Detroit  thereon.  At 
about  8  o'clock  on  the  evening  of  the  same 
day  he  took  the  train  at  Detroit  for  Dexter, 
taking  a  seat  in  the  smoking  car.  When  a 
few  miles  out  of  Detroit,  the  conductor  took 
up  his  ticket.  When  the  train  arrived  at 
Ypsilanti,  plaintiff  left  the  smoker,  and  took 
a  seat  in  a  regular  passenger  car.  After  the 
train  left  Ypsilanti,  the  conductor  came  to 
plaintiff,  and  demanded  his  fare.  Plaintiff" 
informed  him  that  he  had  given  him  his 
ticket  in  the  other  car.  The  conductor  then 
asked  him  for  his  check.  Plaintiff  replied 
that  he  had  not  been  given  a  check.  The 
conductor  threatened  to  put  him  off,  but  did 
not  at  that  time,  but  told  him  that  he  would 
have  to  pay  his  fare,  or  get  off  at  Ann  Ar- 
bor. Plaintiff  responded  that  he  had  sur- 
rendered his  ticket,  and  would  not  pay  his 
fare.  After  the  train  left  Ann  Arbor,  the 
conductor  returned,  and,  plaintiff  refusing 
to  pay  his  fare,  the  conductor  called  the 
brakeman,  and  they  together  pulled  plaintiff 
from  his  seat,  took  him  through  the  car,  and 
put  him  off,  about  one  mile  west  of  Ann 
Ai'bor  and  eight  miles  east  of  Dexter.  Plain- 
tiff testified  that  when  his  ticket  was  taken 
up  no  check  was  given  him;  that  when  the 
conductor  came  to  him  the  second  time,  and 
again  just  before  he  was  put  off,  he  told  the 
conductor  that  if  he  would  go  back  with  him 
into  the  smoking  car  he  would  prove  his  as- 
sertions by  the  man  who  sat  with  him,  but 
that  the  conductor  told  him  that  he  had  no 
time  to  bother  with  him;  that  the  conduc- 
tor insisted  that  he  (plaintiff)  had  gotten  on 
at  Ypsilanti;  that  he  was  ejected  from  the 
car  by  force  at  about  10  o'clock  at  night; 
that  the  night  was  veiy  dark;  that  he  could 
not  even  see  the  fences  on  either  side  of  the 
track,  and  that  he  was  compelled  to  walk 
home.  It  was  not  claimed  on  the  trial  that 
plaintiff  had  not  surrendered  a  ticket,  but 
the  conductor  insisted  that  he  had  given  him 
and  aJl  of  the  excm-sionists  checks;  that  he 
told  plaintiff  that  if  he  would  bring  one 
man  tluit  knew^  him,  that  said  he  came  from 
Detroit,  it  would  be  all  right,  but  he  would 
not  do  that;  that  he  used  no  force  in  eject- 
ing him;    and  denied  that  plaintiff"  had  re- 


quested him  to  go  into  the  smoking  car  for 
the  purpose  of  identification.  One  of  plain- 
tiff's witnesses,  who  was  in  the  smoker, 
testified  that  the  conductor  gave  plaintiff"  no 
check  when  the  ticket  was  taken  up.  An- 
other witness,  who  was  in  the  car  from 
which  plaintiff  was  ejected,  testified  that  she 
M-as  an  excm'sionist,  as  were  others  who 
were  with  her;  that  no  checks  were  given 
to  her  or  the  other  excursionist  with  her, 
and  that  she  heard  plaintiff  say  to  the  con- 
ductor that  if  he  would  go  into  the  smoking 
car  with  him  (plaintiff)  he  could  prove  that 
he  got  on  at  Detroit,  and  had  given  up  his 
ticket,  and  the  conductor  refused  to  go. 
Plaintiff  had  a  verdict  for  $1,200,  and  de- 
fendant appeals. 

The  alleged  errors  relate  to  the  refusal  of 
requests  to  charge,  and  to  the  instructions 
given  on  the  question  of  damages.  The  de- 
fendant was  entitled  to  have  the  jury  in- 
structed as  to  the  law  applicable  to  its  ver- 
sion of  the  case.  After  the  smTender  of 
his  ticket,  plaintiff  had  left  his  seat  in  the 
smoking  car,  and  taken  a  seat  in  another 
car.  If  plaintiff  received  a  check  from  the 
conductor,  and,  when  his  fare  was  demand- 
ed, did  not  produce  the  check,  and,  when  re- 
quested, refused  to  go  into  the  other  car  for 
identification,  he  could  not  recover.  The 
check,  if  given,  was  given  him  for  the  very 
pm-pose  of  identification.  It  was  notice  to 
him  that  the  conductor  would  rely  ujDon  its 
])roduction,  and  not  upon  recollection.  The 
defendant  was  entitled  to  the  instruction 
that  there  was  no  evidence  of  malicious  in- 
tention on  the  part  of  the  conductor;  but, 
under  the  circumstances  of  this  case,  if  the 
jury  believed  the  testimony  introduced  on 
behalf  of  plaintiff,  the  plaintiff'  was  enti- 
tled to  recover,  not  only  those  damages,, 
which  are  ordinarily  termed  "actual  dam- 
ages," but  for  whatever  injm-y  to  his  feel- 
ings or  of  indignity,  pain,  and  disgrace  such 
conduct  would  tend  to  produce  in  view  of 
the  time,  place,  and  circumstances.  Con- 
duct may  be  so  hasty  and  ill-timed,  and  so 
far  disregard  proper  precaution  and  the 
rights  of  others,  as  to  be  reckless  and  op- 
pressive, and  the  law  regards  recklessness 
and  oppression  as  aggravating  the  injury. 
Post  Co.  V.  McArthur,  IG  Mich.  453;  Josse- 
lyn  V.  McAllister,  22  Mich.  310;  Kreiter  v. 
Nichols,  28  Mich.  499;  Elliott  v.  Herz,  29' 
Mich.  202;  Kehrig  v.  Peters,  41  Mich.  475, 
2  N.  W.  801;  Ross  v.  Leggett,  61  Mich.  445, 
28  N.  W.  695.  If  plaintiff's  legal  rights  were 
violated  by  the  expulsion  from  the  train,  it 
was  for  the  jury  to  consider  the  injm*y  to  his 
feelings  that  such  conduct  would  be  likely  to- 
produce,  in  view  of  his  consciousness  that 
he  was  without  fault,  and  had  a  right  to  re- 
main upon  the  train  to  his  destination.  Rail- 
road Co.  V.  Flagg,  43  111.  3G4;  Carsten  v. 
Railroad  Co.,  44  Minn.  454,  47  N.  W.  49; 
Railroad  Co.  v.  Rice,  64  Md.  63,  21  Atl.  97; 
Railroad  Co.  v.  Holdridge,  118  Ind.  281,  20' 
N.   E.  837.     It  was  expressly   held  in   Rail- 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


21 


road  Co.  v.  Winter's  Adm'r,  143  U.  S.  60, 
32  Sup.  Ct.  336,  that  if  plaintiff  was  ri,a;bt- 
fuUy  on  the  train  as  a  passenger,  he  had  the 
right  to  refuse  to  be  ejected  from  it,  and 
to  make  a  sufficient  resistance  to  being  put 
off  to  denote  that  he  was  being  removed  by 
compulsion,  and  against  his  will;  and  the 
fact  that  under  such  circumstances  he  was 
put  off  the  train  was  of  itself  a  good  cause 
of  action  against  the  company.  Defendant's 
belief  cannot  be  held  to  justify  unreasonable 
or  recldess  conduct.  Welch  v.  Ware,  32 
Mich.  77;  Raynor  v.  Nims,  37  Mich.  34. 

The  court  was  in  error,  however,  in  in- 
structing the  jury  that  plaintiff  was  enti- 
tled to  exemplary  damages  in  the  absence 
of  any  explanation  as  to  what  was  meant 
by  that  term.  Post  Co.  v.  McAi-thiu',  supra. 
The  covu-t  had  already  instructed  the  jury 
that  plaintiff  was  entitled  to  recover  as  ac- 
tual damages  "for  such  pain  and  mortifica- 
tion and  disgrace  as  the  act  entailed,"  and 
then  informed  the  jury  that  if  plaintiif  made 
a  proposition  to  the  conductor  to  step  back 
into  the  other  car,  and  allow  him  to  prove 
that  he  got  on  at  Detroit,  and  surrendered 
his  ticket,  then  he  was  entitled  to  recov- 
er', in  addition  to  his  actual  damages, 
what  the  law  calls  "exemplary  damages." 
The  jury  were  left  free  to  add  to  the  amount 
which  they  found  that  plaintiff  had  suffered 
from  mortification,  pain,  and  disgrace  a  fm*- 
ther  sum  as  a  punishment.  The  aim  of 
law  which  gives  redress  for  private  wrongs 
is  compensation  to  the  injured,  rather  than 


the  prevention  of  a  recm-rence  of  the  wrong. 
The  law  recognizes  the  fact  that  an  injury 
may  be  intensified  by  the  malice  or  will- 
fulness or  oppressiveness  or  recklessness  of 
the  act,  and  simply  allows  damages  com- 
mensurate with  the  injury  when  these  ele- 
ments are  present.  The  added  injury  in 
consequence  of  their  presence  is  not  always 
susceptible  of  proof,  hence  the  matter  is  left 
to  the  sound  discretion  of  the  jury.  Courts, 
however,  should  call  attention  to  the  ele- 
ments that  should  be  considered  by  juries  in 
this  class  of  cases,  and  caution  them  from 
acting  upon  improper  theories.  Josselyn  v. 
McAllister,  22  Mich.  310;  Scripps  v.  Reilly,  38 
Mich.  10;  Stilson  v.  Gibbs,  53  Mich.  280,  18 
N.  W.  815;  Wilson  v.  Bo  wen,  64  Mich.  133, 
31  N.  W.  81.  It  is  m-ged  that  the  defendant 
is  not  liable  in  exemplary  damages  for  the 
oppressive  or  reckless  conduct  of  the  con- 
ductor, and  Railroad  Co.  v.  Prentice,  147 
U.  S.  101,  13  Sup.  Ct.  201,  is  relied  upon.  In 
that  case  the  act  was  wholly  without  the 
line  or  scope  of  the  conductor's  authority, 
and  the  com-t  expressly  recognize  the  rule 
that,  if  any  wantonness  or  mischief  on  the 
part  of  an  agent  acting  within  the  scope  of 
his  employment  causes  additional  injm-y  to 
the  plaintiff  in  body  or  mind,  the  principal 
is  liable  to  make  compensation  for  the  whole 
injury  suffered,  and  a  number  of  cases  are 
cited  in  support  of  the  doctrine.  For  the 
errors  mentioned,  the  judgment  is  reversed, 
and  a  new  trial  ordered.  The  other  justices 
concmrred. 


22 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


CHELLIS   V.   CHAPMAN.  1 

(26  N.  E.  308,  125  N.  Y.  214.) 

Court  of  Appeals  of  New  York.    Jean.  13,  1891. 

Appeal  from  Buprenie  court,  general 
term,  fourth  department. 

Watson  M.  Rogers,  for  appellant.  Haii- 
uibai  Smith,  for  respondent. 

GRAY,  J.  This  plaintiff  has  recovered  a 
verdict  for  $S,0()U,  as  damages  for  the 
breach  by  defendant  of  his  promise  to 
marry  her.  The  proofs  abundantly  justi- 
li{'(l  the  jury  in  finding  as  they  did,  but  the 
delendant  insists  that  the  trial  judge  erred 
in  his  rulings  upon  the  evidence,  and  in 
his  charge.  He  does  not  raise  any  ques- 
tion about  the  fact  of  his  agreement  to 
marry  the  plaintiff,  and,  indeed,  he  could 
not  well  do  so,  as  it  was  established  out 
of  his  own  mouth;  but  he  thinks  his  case 
was  piX'judiced  by  theadn)ission  ofcertain 
evidence,  and  by  the  way  in  which  the  trial 
judge  submitted  the  question  of  the  dam- 
ages to  tlie  consideration  of  the  jury,  and 
that  he  should,  therefore,  have  a  new  trial. 
The  general  term,  in  affirming  the  judg- 
ment, have  passed  upon  various  points 
raised  by  the  appellant,  and  we  might  well 
remit  the  case  without  further  expression 
of  opinion;  but  some  of  the  questions  still 
insisted  upon  seem  to  deserve  further  con- 
sideration from  us.  Evidence  of  the  defend- 
ant's general  reputation  as  to  wealth,  at 
the  time  of  theagreementof  marriage,  was 
admitted  against  the  objection  to  its  cor^- 
petency  up<jn  the  subject  of  damages  in 
such  an  action.  The  exception  to  its  ad- 
mission presents  an  interesting  question, 
and  one  which  may  be  deemed  not  alto- 
gether free  from  difficulty.  Such  evidence, 
on  first  consideration,  seems  to  conflict 
with  the  general  rule  that  in  actions  for 
a  breach  of  contract  evidence  as  to  the  de- 
fendant's wealth  is  inadmissible.  The 
plaintiff,  in  such  actions,  is  entitled  to  re- 
cover only  those  damages  which  she  may 
prove  that  she  has  suffered  in  consequence 
of  the  defendant's  failure  to  perform  on 
his  part.  The  defendant's  solvency,  or  in- 
solvency, has  nothing  to  do  with  the  is- 
sue, and  furnishes  no  measure  for  the  com- 
putation of  damages.  And  this  rule  of  ex- 
clusion as  to  snch  evidence  has  been  also 
ai)plied  to  cases  where  damages  aresought 
to  be  recovered  for  seduction,  or  for  crim- 
inal conversation.  James  v.  Biddington, 
6  Car.  &  P.  589;  Dain  v.  Wycoff,  7  N.  Y. 
191.  Baron  Aldehson,  in  James  v.  Bid- 
dington, an  action  by  a  husband  for  crim- 
inal conversation  with  his  wife,  assigned 
as  the  reason  for  holding  such  evidence  to 
be  improper  that  "the  plaintiff  is  entitled 
to  as  much  damages  as  a  }\n'j  think  is  a 
compensation  for  the  injury  he  has  sus- 
tained, and  the  amount  of  the  defendant's 
property  is  not  a  question  in  the  case." 
Judge  Gardixkr,  in  Dain  v.  Wycofl',  an 
action  by  a  father  for  the  seduction  of  his 
daughter,  reasoned,  upon  the  exclusion  of 
proof  of  what  defendant  was  worth,  that 
the  jury  should  not  be  allowed  "  to  go 
beycmd  the  issue  between  the  parties  liti- 
gating, and,  after  indemnifying  the  plain- 


1  Affirming  7  N.  Y.  Supp.  78. 


tiff  for  the  injury  sustained  by  him,  pro- 
ceed as  conservators  of  the  public  morals 
to  punish  the  defendant  in  a  private  action 
for  an  offense  against  society."  The  prin- 
ciple underlying  the  exclusion  of  this  kind 
of  evidence,  in  the  latter  class  of  cases,  is 
that  vindictive  or  punitive  damages  would 
be  improper,  as  the  recovery  in  them 
should  be  confined  to  what  the  jury  may 
deem  to  be  a  sufficient  compensation  for 
the  injury  sustained  by  the  plaintiff.  But 
the  present  action  is  quite  other  in  its  nat- 
ure, and  constitutes  an  exception  to  that 
general  rule  upon  the  subject  of  damages 
for  violation  of  contractobligations  which 
has  been  assented  to  by  the  judges  of  the 
courts  in  this  country  and  in  England.  It 
is  apparent  that,  in  such  an  action  as  this, 
thei"e  can  be  no  hard  and  fast  rule  of  dam- 
ages, and  that  they  must  be  left  to  the 
discretion  of  the  jury.  Of  course,  that  dis- 
cretion is  not  so  absolute  as  to  be  inde- 
pendent of  a  consideration  of  the  evidence. 
It  is  one  which  is  to  be  exercised  with  re- 
gard to  all  the  circumstances  of  the  par- 
ticular case,  and,  as  it  has  frequently  been 
said,  wliere  the  verdict  has  not  been 
influenced  by  prejudice,  passion,  or  cor- 
ruijtion,  the  verdict  will  not  be  disturbed 
by  the  coni-t.  That  the  amount  of  the 
suitor's  pecuniary  means  is  a  factor  of  some 
importance  in  the  case  of  a  demand  of 
marriage  cannot  fairly  be  denied.  It  is  a 
circumstance  which  very  frequently  must 
have  its  particular  influence  upon  the  mind 
of  the  woman  in  determining  the  question 
of  consent  or  refusal;  and,  as  I  think,  in 
a  proper  case,  very  naturally  and  properly 
so.  The  ability  of  the  man  to  support  her 
in  comfort,  and  the  station  in  life  which 
marriage  with  him  holds  forth,  are  mat- 
ters which  may  be  weighed  in  connection 
with  an  agreement  to  marry. 

In  the  case  at  bar  the  plaintiff  was  47 
years  of  age,  and  the  defendant  74.  Six 
years  previously  he  had  son,ght  her  ac- 
quaintance, unsolicited  by  her,  and  with 
matrimonial  views  on  his  part.  He  had 
visited  her  more  or  less  frequently,  and 
had  twice  proposed  marriage  before  their 
engagement  in  18S6.  She  was  and  had 
been  supporting  herself  as  a  teacher  aud 
superintendent  in  city  schools.  He  had 
never  been  married,  and  had  lived  in  the 
country  as  a  farmer.  He  was  possessed  of 
pecuniary  means,  considerable  in  amount 
in  tiie  general  estimation  of  his  neighbors, 
and  not  inconsiderable  if  we  take  his  own 
estimate.  Though  pretending  to  some 
cultivation  of  mind,  which,  among  other 
ways,  if  we  may  judge  from  this  record, 
he  seemed  to  delight  in  displaying  by  a 
versification  of  thehomel3'  though  not  very 
inspiring  or  romantic  topics  and  events  of 
his  farm  life  and  surroundings,  he  yet  was 
seemingly  lacking  in  those outw^ard  graces 
of  the  person  Avhich  are  not  infrequently 
deemed  a  substitute  for  more  solid  posses- 
sions. Nor  does  he  seem  to  have  had  re- 
course to  the  adventitious  aids  of  the  ward- 
robe to  adorn  his  exterior  pej'son,  and 
thereby  to  compensate  for  personal  short- 
comings. I  think  that  the  jury  should  be 
made  aware  of  all  thecircumstances  which 
in  this  case,  and  in  every  such  case,  might 
be  supposed  to  have  presented  themselves 
to  the  mind  of  the  plaintiff  when  asked  to 
change    her    position     by    mariiage.      Of 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


23 


these  circumstances,  the  home  offcretl, 
"v\-hich  for  its  comfoits  aiul  ease  would  de- 
perifl  upon  the  more  or  less  ample  pecuni- 
ary menus  of  the  defendant,  the  freedom 
from  the  personal  exertions  for  daily  sup- 
port, the  Bocial  position  accompanying 
the  nuirria<2;o,  all  these  are  facts  wliicii 
have  their  proi)cr  bearing  up()n  the  cjues- 
tion  of  marriaji;e.  The  wealth  and  the  rep- 
utation for  wealth  of  a  man  are  matters 
which,  as  tliis  world  is  constituted,  often 
aid  in  (ietermininjj;'  his  social  position, not- 
withstanding he  may  have  otlier  and  more 
intellisit)le  rights  to  it,  and  despite  objec- 
tionable characteristics  or  traits.  Where, 
therefore,  the  defendant  has  demanded  an 
engagement  of  marriage,  it  seems  proper 
enough  that  the  jury  should  know  what 
I)ossible  reinforcement  his  suit  may  have 
had,  and  what  were  the  inducements 
offered  by  his  social  standing  and  sur- 
roundings. In  the  case  of  James  v.  Bid- 
dington,  supra.  Baron  Ai.di:kso.\,  while 
holding  it  improper  to  give  evidence  of  the 
amount  of  defendant's  property  in  an  ac- 
tion for  criminal  con  vei'satiun,  said  :  "In 
a  case  of  breach  of  promise  of  marriage, 
the  amount  of  the  defendant's  property  is 
very  material,  as  siiowing  wliat  would 
have  been  the  station  of  the  plaintiff  in 
society  if  the  defendant  had  not  broken  his 
promise.  "  And  set;  Bei-rv  v.  Da  Costa,  L.  K. 
1  C.  P.  331;  Wood  v.  Hurd,  2  Bing.  N.  C. 
1G6.  It  has  been  so  held  in  this  court,  and 
in  the  courts  of  other  states,  to  S(Mne  of 
whose  decisions  the  respondent's  brief  has 
directed  our  attention.  Kniffen  v.  Mc- 
Connell,  30  N.  Y.  2S5;  Lawrence  v.  Cooke, 
5G  Me.  187;  Bennett  v.  Beam,  42  Mich.  34G, 
4  N.  W.  Kep.  8;  Allen  v.  Baker,  SG  N.  C.  91. 
In  Mayne,  Damages,  (Wo(jd's  Ed.  §  G77,) 
upon  the  strength  of  the  English  authori- 
ties I  have  citefl,  the  same  rule  is  given. 
1  apprehend,  however,  tliat  the  difficulty, 
in  the  question  before  us,  of  the  evidence,  is 
not  so  much  in  adducing  proof  as  to  de- 
fendant's pecuniary  means,  as  in  the  mode 
of  their  proof.  But  assuming,  as  I  think 
we  are  bound  to  do  under  the  authorities, 
that  the  amount  of  defendant's  property 
is  material  in  such  an  action,  then  evidence 
of  the  reputation  which  he  enjoys  for 
wealth  is  unobjectionable.  Reputation  is 
the  common  knowledgeof  the  community', 
and,  if  it  is  exaggerated  or  incorrect,  the 
defendant  has  the  opportunity  to  correct 
it,  and  of  giving  the  exact  facts  upon  the 
trial.  The  admission  of  the  evidence  is 
not  to  establish  an  ability  to  pay,  but  to 
show  the  social  standing  which  defend- 
ant's means  did,  or  might,  command.  In 
Kniffen  v.  McConnell,  30  N.  Y.  289,  which 
was  an  action  f(.r  a  l)reacii  of  jjromise 
of  marriage.  Judge  Ingr.vham,  deliver- 
ing the  opinion  (jf  the  court,  held  that  "it 
may  be  objectionable  to  particularize  the 
defendant's  property,  and  such  evidence 
should  be  conlined  to  general  reputation 
as  to  the  circumstances  of  the  defendant. 
To  that  extent  1  think  it  admissible." 
The  learned  judge  does  not  reason  upon 
the  rule,  but  I  am  not  aware  that  this  de- 
cision has  ever  been  questioned,  and  I  do 
not  think  it  well  can  l)e.  In  Kerfoot  v. 
Marsden,  2  Fost.  &  F.  IGO,  an  action  for 
breach  of  promise  of  marriage,  in  1860, 
Wilde,  B.,  ruled  :  "  You  ntay  ask  in  a  gener- 
al way    as   to    the   defendant's   property, 


but  you  cannot  go  into  particular  items 
as  to  his  property."  I  think  we  must  con- 
clude upon  authority,  as  well  as  upon  the 
reason  of  the  thing,  that  evidence  of  the 
reputation  of  the  defendant  astowcal!'; 
is  admissible  in  these  cases.  The  belief 
of  the  plaintiff  must  have  been  influ- 
enced by  tiie  opinions  or  beliefs  of  the 
members  of  the  community  in  which  the 
defendant  resided.  She  could  not  be  i)re- 
sumed  to  have  personal  cognizance  of 
a  matter,  which  is  so  peculiarly  one 
within  the  individual's  exclusive  knowl- 
edge, and  what  credence  sh(^  gave  to  gen- 
eral report  was  not  without  justification. 
She  had  some  right  to  nily  upon  it.  The 
action  is  intended  as  an  indemnity  for  the* 
temporal  loss  which  the  plaintiff  has  sus- 
tained, and  that  embraces  the  mortifica- 
tion to  the  feelings,  the  wounded  pride, 
and  all  the  disappointments  from  the  fail- 
ure of  the  marriage,  as  well  in  the  losses 
it  has  occasioned  as  in  the  blow  to  the 
affections. 

The  appellant  insists  upon  the  error  of 
the  trial  judge  in  submitting  to  tlie  jury 
the  question  of  exemphuy  damages.  But 
we  think,  in  such  a  case,  that  it  is  the 
province  of  the  jury  to  determine  upon 
the  proof  of  the  facts  and  of  the  surround- 
ing circumstances  what  daniages  should 
be  awarded.  If  the  conduct  of  the  defend- 
ant in  violating  his  promise  is  character- 
ized by  a  disregard  of  the  plaintiff's  feel- 
ings or  reputation;  if  iie  has  placed  her, 
or  induced  her  to  place  herself,  in  a  false 
position,  or  to  forego  temporal  advan- 
tages; if  the  breach  of  his  promise  is  un- 
justifiable: if  he  spreads  ui)on  the  record 
matters  in  defense  of  the  action  which  are 
scandalous,  and  tend  to  reflect  discredit 
upon  tiie  plaintiff,  or  stain  her  reputa- 
tion,—then  these  are  all  circumstances 
which  may  be  considered  by  the  jury,  and 
may  be  availed  of  by  them  to  enhance 
the  damages.  Here  the  trial  judge  did 
not  say  in  his  charge  that  this  was  a  case 
for  the  infliction  of  punitive  damages.  He 
instructed  the  jury,  in  substance,  that  if 
the  plaintiff  was  entitled  to  damages 
thej^  should  certainly  give  compensatory 
damages,  and  that,  in  the  exenjise  of  their 
discretion  based  on  the  proofs  and  circum- 
stances of  the  case,  they  migiit  award 
exemplary  or  punitive  damages.  Upon 
this  subject,  of  when  such  damages  might 
be  awarded,  he  read  at  length  from  the 
opinions  of  this  court  in  Thorn  v.  Knapp, 
42  N.  Y.  474,  and  Johnson  v.  Jenkins,  24 
N.  Y.  252,  for  the  purpose  of  showing  the 
rule  to  be  applied.  It  is  clear  that  he 
left  it  to  them  to  arrive  at  a  decision  up- 
on the  propriety  of  giving  exemplary 
damages  from  a  consideration  of  the  de- 
fendant's motives  and  conduct.  Now, 
there  was  evidence  in  the  case  upon  which 
a  verdict  might  well  include  exemplary 
damages.  The  wedding  day  was  agreed 
upon,  the  usual  preparations  were  niadt^ 
by  the  plaintiff,  and  relatives  and  guests 
were  bidden  to  the  ceremony.  But  tlae  de- 
fendant did  not  appear.  He  alleged  phys- 
ical ailments  in  excuse  of  not  fulfilling  his 
marital  engagement,  but  there  was  evi- 
dence that  he  was  evading  it,  and  sham- 
ming illness.  He  admits  that  he  had  no 
fault  to  find  with  her.  She  had  resigned 
her  position  to  marrj^  him.     He  denies   re- 


24 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


questing  her  to  do  so;  but  Iiis  attempt  at 
<3enial  is  weakened  by  his  snbsequtMit  ad- 
mission that  he  expected  her  to  do  it. 
Then,  in  his  pleading,  he  charges  t)ic  jdain- 
tiff  with  having  no  affection  for  him,  but 
with  entertaining  a  purpose  to  procure 
money  from  liim,  on  the  pretense  of  his 
promise  to  marry  her,  and  his  breach 
thereof.  These  w^ere  elements  in  the  case 
-which  might  properly  enter  into  tiie  de- 
cision of  the  jury  as  to  the  amount  of 
damages. 

The  appellant  alleges  another  error  in 
the  charge,  when  the  trial  judge  in- 
structed the  jury:  "In  fixing  the  an. ount 
fof  damages]  tlie  plaintiff  is  entitled  at 
east  to  such  damages  as  would  place  her 
in  as  good  pecuniary  condition  as  she 
would  have  been  if  the  contract  had  been 
fulfilled."  This  was,  of  course,  a  careless 
use  of  language,  but  it  could  not  have  prej- 
udiced the  defendant's  case.  It  was  very 
plainfrom  all  the  charge, in  whatpreceded 
as  in  wliat  immediately  followed  the  sen- 
tence picked  out  for  objection,  that  the 
trial  judge  intended  to  and  did  instruct  his 
jury  that  they  should  compensate  the 
plaintiff  for   what  she  had  lost  and  was 


deprived  of  by  the  failure  of  tho  marriage. 
They  might  affix  to  the  marriage  with 
the  defendant  that  pecuniary  value  which, 
In  their  judgment,  upon  all  the  circum- 
stances of  the  case,  it  would  have  to  tho 
plaintiff.  The  jury  could  not  reasonably 
have  understood  the  judge  otherwise.  It 
may  often  occur  in  a  charge  to  the  jury 
that  particular  words  or  expressions  used, 
when  taken  by  themselves,  will  be  objec- 
tionable or  seem  to  be  erroneous;  but  they 
should  not  be  considered  independently  of 
contextual  phrases.  If,  when  read  in  con- 
nection with  therestof  thecharge,thesense 
of  language  used  is  made  clear,  and  its 
meaning  explained,  and  the  instruction  is 
not  uncertain  as  to  tlie  subject-matter,  the 
result  of  tlie  trial  should  not  be  disturbed 
for  mere  inaccuracies  or  carelessness  in 
speech.  There  is  no  occasion  for  a  further 
discussion  of  any  questions,  and  the  judg- 
ment and  order  appealed  from  should  be 
affirmed,  with  costs.  All  concur,  except 
Karl  and  Picckham,  JJ.,  who  dissent,  on 
the  ground  that  it  was  error  to  receive 
proof  of  the  defendant's  wealth  by  repu- 
tation. 
Judgment  affirmed. 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


25 


"McINTYRE,  Adm'r,  v.  SHOLTY,  Adm'r. 

(13  N.  E.  239,  121  111.  660.) 

Supreme  Court  of  Illinois.    Sept.  27,  1SS7. 

Error  to  appellate  court.  Third  district;  O. 
T.  Reeves,  Judge. 

Blades  &  Neville,  for  plaintiff  in  error. 
Kerrick,  Lucas  &  Spencer  and  Tipton  &  Bea- 
ver, for  defendant  in  error. 

MAGRUDER,  J.  This  is  an  action  of  tres- 
pass, brought  by  defendant  in  error  against 
plaintiff  in  error,  in  the  circuit  court  of  Mc- 
Lean county,  under  the  "Act  requiring  com- 
pensation for  causing  death  by  wrongful  act, 
ueglect,  or  default;"  being  chapter  70  of  the 
Revised  Statutes,  entitled  "Injuries."  Hurd, 
Rev.  St.  18S5,  p.  095.  Jury  was  waived  by 
agji'eement,  and  the  case  was  tried  without  a 
jury  before  the  judge  of  the  circuit  court, 
Avho  gave  judgment  for  the  plaintiff  for 
§2,500.  This  judgment  has  been  affirmed  by 
the  appellate  coui-t,  and  is  brought  before  us 
for  review  by  writ  of  error  to  the  latter  court. 

Hannah  Sholty  was  the  wife  of  Levi  Sholty, 
a  farmer  living  in  McLean  county,  near 
Bloomington.  About  Februaiy  17,  1SS6,  a 
working-man  upon  Levi  Sholty's  farm  dis- 
covered a  man  in  the  barn,  who,  to  all  ap- 
pearances, had  been  concealing  himself  there 
for  some  time.  The  pei-son  so  concealed  is 
proven  to  have  been  defendant's  intestate, 
Benjamin  D.  Sholty,  a  brother  of  Levi  Sholty. 
Some  efforts  seem  to  have  been  made  on 
February  17th  or  ISth  to  get  the  officers  of 
the  law  in  Bloomington  to  go  out  to  the  farm 
and  arrest  Benjamin  D.  Sholty,  called  by  the 
witness  David  Sholty.  This  effort,  however, 
failed.  Accordingly,  Levi  Sholty  and  his 
hired  man,  and  a  number  of  his  neighbors, 
gathered  at  his  house  on  the  afternoon  of 
February  18,  1880,  for  the  purpose  of  watch- 
ing for  the  inti-uder,  and  gettingi  him  out  of 
his  hiding-place.  The  bam  was  40  or  50  feet 
wide,  and  from  80  to  100  feet  long.  It  was 
situated  about  150  or  200  feet  north-west 
from  the  house.  The  granary  was  in  the 
western  end  of  the  barn,  and,  hence,  in  the 
end  that  was  furthest  from  the  house.  About 
6  o'clock  in  the  evening,  David  Sholty  was 
discovered  in  the  granary  by  his  brother  Levi 
and  one  McCoy,  who  were  on  watch  just  out- 
side of  the  granary  door.  He  shot  at  them 
twice  with  a  pistol,  while  they  were  trying  to 
prevent  his  escape,  and  to  capture  him.  oth- 
ers who  were  waiting  in  the  house  came  to 
their  assistance.  A  rope  was  obtained,  with 
the  intention  of  tying  him,  if  captured.  Pres- 
ently there  was  a  cry  of  fire,  and  the  flames 
were  seen  to  be  breaking  out  at  the  eastern 
end  of  the  banr,  being  the  end  nearest  to- 
wards the  house.  At  this  time  Mi"S.  Hannah 
Sholty,  plaintiff's  intestate,  went  from  the 
house  towards  the  barn,  and  had  advanced 
about  half  of  the  distance  between  the  two, 
when  David  Sholty  appeared  in  the  door  at 


the  easter-n  end  of  the  barn,  with  a  shot-gun. 
He  was  plainly  visible  in  the  hght  made  by 
the  fire  that  had  broken  out.  He  called  upon 
Mrs.  Sholty  and  her  daughter  Mary,  who  was 
with  her,  to  stop.  They  stopped,  turned,  and 
had  advanced  a  few  feet  on  their  way  back 
towards  the  house,  when  David  Sholty  fired 
at  them  with  the  gim  in  his  hand.  Both 
were  shot.  The  daughter  was  wounded  in 
the  wrist,  and  the  luothcr  was  killed.  This 
action  is  brought  by  her  husband,  as  admin- 
istrator of  her  estate,  to  recover  damages  for 
her  death,  against  the  administrator  of  the 
estate  of  David  Sholty,  who  is  said  to  have 
perished  in  the  flames  of  the  burning  bam. 

The  defendant  introduced  no  testimony,  ex- 
cept that  the  examination  of  one  witness  was 
begun,  and  abandoned,  after  a  few  prelimi- 
nary questions,  on  account  of  the  ruling  of 
the  court  as  hereafter  stated.  The  defense 
proposed  to  shoAV  by  the  witness  on  the  stand, 
and  by  others  there  present  in  court,  that  de- 
fendant's intestate,  Benjamin  D.  Sholt>%  was 
insane  at  the  time  Mrs.  Sholty  was  killed. 
The  coui-t  refused  to  receive  evidence  of  his 
insanity,  and  exception  was  taken  to  the  rul- 
ing. The  question  presented  relates  to  the 
liability  of  an  insane  person  for  injm'ies  com- 
mitted by  him. 

It  is  well  settled  that,  though  a  lunatic  is 
not  punishable  criminally,  he  is  liable  in  a 
civil  action  for  any  tort  he  may  commit. 
However  justly  this  doctrine  may  have  been 
originally  subject  to  criticism,  on  the  grounds 
of  reason  and  principle,  it  is  now  too  firmly 
supported  by  the  weight  of  authority  to  be 
disturbed.  It  is  the  outcome  of  the  principle 
that  in  trespass  the  intent  is  not  conclusive. 
Mr.  Sedgwick,  in  his  work  on  Damages, 
(marg.  page  456,)  says  that,  on  priuciple,  a 
lunatic  should  not  be  held  liable  for  his  toi'ti- 
ous  acts.  Opposed  to  his  view,  however,  is 
a  majority  of  the  decisions  and  text  writers. 
There  certainly  can  be  nothing  wrong  or  un- 
just in  a  verdict  which  merely  gives  compen- 
sation for  the  actual  loss  resulting  from  an 
injury  inflicted  by  a  lunatic.  He  has  proper- 
ly no  will.  His  acts  lack  the  element  of  in- 
tent, or  intention.  Hence  it  would  seem  to 
follow  that  the  only  proper  measure  of  dam- 
ages in  an  action  against  him  for  a  wrong, 
is  the  mere  compensation  of  the  party  injur- 
ed. Punishment  is  not  the  object  of  the 
law  when  persons  unsound  in  mind  are  the 
wrong-doers.  There  is,  to  be  sure,  an  appear- 
ance of  hardship  in  compelling  one  to  respond 
for  that  which  he  is  unable  to  avoid,  for 
want  of  the  control  of  reason.  But  the  ques- 
tion of  liability  in  these  cases  is  one  of  pub- 
lic policy.  If  an  insane  person  is  not  held 
liable  for  his  torts,  those  interested  in  his 
estate,  as  relatives,  or  otherwise,  might  not 
have  a  sufficient  motive  to  so  take  care  of 
him  as  to  deprive  him  of  opportunities  for  in- 
flicting injuries  upon  others.  There  is  more 
injustice  in  denying  to  the  injured  party  the 
recovery  of  damages  for  the  wrong  suffered 
by  him,  than  there  is  in  calling  upon  the  rela- 


26 


COMPENSATORY  AND  EXEMPLARIl*  DAMAGES. 


tives  or  friends  of  the  lunatic  to  pay  the  ex- 
pense of  his  confinement,  if  he  has  an  estate 
ample  enough  for  that  purpose.  The  liability 
of  lunatics  for  their  torts  tends  to  secure  a 
more  efficient  custody  and  guardianship  of 
their  persons.  Again,  if  parties  can  escape 
the  consequences  of  their  injurious  acts  upon 
the  plea  of  lunacy,  there  will  be  a  sti-ong 
temptation  to  simulate  insanity,  with  a  view 
of  masking  the  malice  and  revenge  of  an  evil 
heart.  The  views  here  expressed  are  sus- 
tained by  the  following  authorities:  Cooley, 
Torts,  99-103;  2  Saund.  PI.  &  Ev.  318;  Shear. 
&  R.  Neg.  §  57;  Weaver  v.  Ward,  Hob.  134; 
Morse  v.  Crawford,  17  Vt.  499;  Behrens  v. 
McKenzie,  23  Iowa,  333;  Krom  v.  Schoon- 
maker,  3  Barb.  G47;  also  cases  in  note  to  said 
case,  in  Ewell,  Lead.  Cas.  642.  In  the  light 
of  the  principles  thus  announced  we  find  no 
error  in  the  ruling  of  the  circuit  court  upon 
this  subject. 

Plaintiff  in  eiTor  also  contends  that  there 
should  have  been  no  recovery  in  this  case  be- 
cause of  alleged  contributory  negligence  on 
the  part  of  Mrs.  Sholtj*.  It  is  claimed  that 
she   knew   of   her   brother-in-law's   madness, 


and  that  he  was  armed,  when  she  started  to 
go  from  the  house  towards  the  stable;  and 
that  by  doing  so,  under  the  circumstances, 
she  was  guilty  of  a  want  of  proper  care  and 
prudence.  We  forbear  to  express  any  opin- 
ion as  to  whether  or  not  there  could  be  any 
such  thing  as  contributory  negligence  in  a 
case  of  this  kind,  and  under  such  circum- 
stances as  are  herein  disclosed.  It  is  suffi- 
cient to  say  that  there  is  a  considerable 
amount  of  evidence  in  the  case  bearing  upon 
this  question.  If  it  could  be  properly  raised, 
the  facts  necessary  to  do  so  were  fully  de- 
veloped in  the  testimony  presented  to  the 
court  by  the  plaintiff  below.  Therefore, 
plaintiff  in  error  should  have  submitted  to  the 
trial  court  a  proposition  to  be  held  as  law 
embodying  his  theory  of  contributory  negli- 
gence as  applicable  to  the  facts  of  the  case, 
in  accordance  with  section  41  of  the  practice 
act.  Hurd,  Rev.  St.  188-5,  p.  904.  He  did 
not  do  so,  and  hence  the  question  is  not  prop- 
erly before  us  for. our  consideration. 

The  judgment  of  the  appellate  court  is  af- 
firmed. 

Judgment  affirmed. 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


SHEIK  V.  HOB  SON,  Adm'r. 
(19  N.  W.  875,  G4  Iowa.  146.) 
Supreme  Court  of  Iowa.    June  11,  1884. 
Appeal  from  circuit  court,  Clayt(jn  county. 
Action  for  dauiages  on  account  of  slander- 
ous words  spoken  of  plaintiff  by  defendant's 
intestate.     There   was   a    verdict  and   judg- 
ment  for   plaintiff  for   $1,000.     Plaintiff   ap- 
ueals. 

J.  W.  Rogers  &  Son,  for  appellant.  Mur- 
dork  &  Larkin,  Ainsworth  &  Hobsou,  Noble  & 
Updegraff,  and  Cyrus  Wellington,  for  appel- 
lee. 

REED,  J.  The  action  was  originally 
brought  against  Henry  Rush,  but  during  its 
pendency  he  died,  and  defendant,  Hobsou, 
administrator  of  his  estate,  was  substituted 
as  defendant.  The  alleged  slanderous  words 
imputed  to  plaintiff  a  want  of  chastity.  They 
are  alleged  to  have  been  spoken  iu  the  pres- 
ence of  plaintiff's  husband,  and  were  to  the 
effect  that  Ru^  had  had  sexual  intercourse 
with  plaintiff. 

At  the  trial  plaintiff  asked  the  court  to  give 
the  following  instructions: 

"(1)  If  you  find  that  the  defendant^  Henry 
Rush,  did  publish  in  substance  the  words  al- 
leged in  petition  as  the  grouuds  of  the  action, 
and  that  said  publication  was  made  mali- 
ciously and  wantonly,  you  are  Instructed  that 
you  may  give  exemplaiy  damages.  (2)  You 
are  instructed  that  if  you  find  from  the  evi- 
dence that  the  slanderous  words  were  pub- 
lished, and  that  the  same  were  dictated  or 
accompanied  by  malice,  oppression,  or  gross 
negligence,  you  can  give  exemplary  damages 
in  your  verdict."  The  court  refused  to  give 
these  instructions,  but  told  the  jury  that 
"damages  on  account  of  maliciously  speak- 
ing the  words,  or,  in  other  words,  exemplary 
damages,  are  not  to  be  given."  Error  is  as- 
signed by  plaintiff  on  the  giving  of  this  in- 
struction, and  the  refusal  to  give  those  asked. 
The  question  raised  by  the  assignment  is 
whether  exemplary  or  punitory  damages  may 
be  awarded  against  the  personal  representa- 
tive of  a  deceased  wrong-doer.  There  is  no 
doubt  but,  at  common  law,  the  remedy  for 
injury  such  as  plaintiff  complains  of  deter- 
mines upon  the  death  of  the  wrong-doer.    1 


Chit.  PI.  89.  But  under  our  statute  (Code.  § 
2.j2.j)  all  causes  of  action  survive,  "aud  may 
be  brought,  notwithstanding  the  death  of  the 
person  entitled  or  liable  to  the  same."  Plain- 
tiff's position  is  that,  under  this  section,  the 
right  is  preserved  to  her  to  have  damages  of 
this  character  assessed  on  account  of  the 
wrongful  and  malicious  act  by  which  she  has 
suffered,  notwithstanding  the  death  of  the 
one  who  committed  the  act.  But  we  think 
the  position  is  not  sound.  It  cannot  be  said, 
in  any  case,— unless  the  right  is  created  by 
statute,— that  the  person  who  suffers  from 
the  wrongful  or  malicious  acts  of  another, 
has  the  right  to  have  vindictive  damages  as- 
sessed against  the  wrong-doer.  Such  dam- 
ages are  awarded  as  a  punishment  of  the  man 
who  has  wickedly  or  Avantonly  violated  the 
rights  of  another,  rather  than  for  the  com- 
pensation of  the  one  who  suffers  from  his 
wrongful  act.  It  is  true,  they  are  awarded 
to  the  one  who  has  been  made  to  suffer,  but 
not  as  a  matter  of  right;  for,  while  he  is  en- 
titled, under  the  law,  to  such  sum  as  will 
fully  compensate  him  for  the  injm-y  sustain- 
ed, the  question  whether  punitory  damages 
shall  be  assessed,  and  the  amount  of  the  as- 
sessment, is  left  to  the  discretion  of  the  jury. 
Plaintiff  had  a  right  of  action,  on  account  of 
the  slanderous  words  spoken  by  Rush,  for 
such  sum  as  would  compensate  her  for  the 
injury.  This  was  her  cause  of  action,  and 
this  is  what  was  i^reserved  to  her  by  the  stat- 
ute at  his  death.  But  she  had  no  personal  in- 
terest in  the  question  of  his  punishment.  So 
far  as  he  was  concerned,  the  punitory  power 
of  the  law  ceased  when  he  died.  To  allow  ex- 
emplary damages  now,  would  be  to  punish 
his  legal  and  personal  representatives  for  his 
wrongful  acts;  but  the  civil  law  never  in- 
flicts vicarious  punishment.  Our  holding  as 
to  the  object  of  assessing  exemplary  damages 
in  any  case  is  abundantly  sustained  by  the 
authorities,  both  in  this  state  and  elsewhere. 
We  content  ourselves,  however,  with  citing 
the  following  cases  in  this  state:  Hendrick- 
son  V.  Kingsbury,  21  Iowa,  379;  Garland  v. 
Wholeham,  26  Iowa,  185;  Ward  v.  Ward,  41 
Iowa,  086. 

We  think,  therefore,  that  the  holding  of  the 
circuit  court  is  correct,  and  the  judgment  is 
affirmed. 


'28 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


LAKE  SHORE  &  M.  S.  RY.  CO.  v.  PREN- 
TICE. 

(13  Sup.  Ct.  2G1,  147  U.  S.  101.] 

Supreme  Court  of  the  United   States.    Jan.  3, 
1S93. 

No.   58. 

In  error  to  the  circuit  court  of  the  United 
States  for  the  northern  district  of  Illinois. 

Action  by  Clialmcr  M.  C.  Prentice  against 
the  Lake  Shore  &  Micliigan  Southern  Rail- 
way Company  to  recover  damages  for  unlaw- 
ful arrest  of  plaintiff,  while  a  passenger,  by 
the  conductor  of  one  of  the  company's  trains. 
Verdict  and  judgment  for  plaintiff.  Defend- 
4int  brings  error.    Reversed. 

Statement  by  Mr.  Justice  GRAY: 

This  was  an  action  of  trespass  on  the  case, 
brought  October  19,  ISSG,  in  tbe  circuit  court 
of  the  United  States  for  the  northern  district 
of  Illinois,  by  Prentice,  a  citizen  of  Ohio, 
-against  the  Lake  Shore  &  Michigan  Southern 
Railway  Company,  a  corporation  of  Illinois, 
to  recover  damages  for  the  wrongful  acts  of 
the  defendant's  servants. 

The  declaration  alleged,  and  the  evidence 
Introduced  at  the  tiial  tended  to  prove,  the 
foUowmg  facts:  The  plaintiff  was  a  physi- 
cian. The  defendant  was  engaged  in  opei-at- 
ing  a  I'ailroad,  and  conducting  the  business 
of  a  common  carrier  of  passengers  and 
^freight,  through  Ohio,  Indiana,  Illinois,  and 
other  states.  On  October  12,  ISSO,  the  plain- 
tifL',  his  wife,  and  a  number  of  other  persons 
were  passengers,  holding  excursion  ticlcets, 
-on  a  regular  passenger  train  of  the  defend- 
ant's railroad,  from  Norwalk,  in  Ohio,  to 
'Chicago,  in  Illinois.  During  the  journey  the 
plaintiff  purchased  of  several  passengers 
their  return  tickets,  which  bad  nothing  on 
them  to  show  that  they  were  not  transfera- 
ble. The  conductor  of  the  train,  learning 
this,  and  knowing  that  the  plaintiff  had  been 
guilty  of  no  offense  for  which  he  was  liable 
to  arrest,  telegraphed  for  a  police  officer,  an 
employe  of  the  defendant,  who  boarded  tbe 
train  as  it  approaclied  Chicago.  The  con- 
ductor thereupon,  in  a  loud  and  angry  voice, 
pointed  out  the  plaintiff  to  the  oflicer,  and 
-ordered  his  arrest;  and  the  of^cer,  by  direc- 
tion of  the  conductor,  and  without  any  war- 
rant or  authority  of  law,  seized  the  plaintiff, 
and  rudely  searched  him  for  weapons,  in  the 
presence  of  the  other  passengers,  hurried  him 
Into  another  car,  and  there  sat  down  by  him 
as  a  watch,  and  refused  to  tell  him  the  cause 
of  his  arrest,  or  to  let  liim  speak  to  his  wife. 
While  the  plaintiff  was  being  removed  into 
the  other  car,  the  conductor,  for  the  purpose 
of  disgracing  and  humiliating  him  with  his  fel- 
low passengers,  openly  declared  that  he  was 
Tuider  arrest,  and  sneeringly  said  to  the  plain- 
tiff's wife,  "Where's  your  doctor  now?"  On 
-arrival  at  Chicago,  the  conductor  refused  to 
let  the  plaintiff  assist  his  wife  with  her  pai-- 
cels  in  leaving  the  train,  or  to  give  her  the 
<;heck  for  their  trunk;    and,  in  the  presence 


of  the  passengers  and  others,  ordered  hira  to 
be  taken  to  the  station  house,  and  he  was 
forcibly  taken  there,  and  detained  until  the 
conductor  arrived;  and,  knowing  that  the 
plaintiff  had  been  guilty  of  no  offense,  en- 
tered a  false  charge  against  him  of  disorder- 
ly conduct,  upon  which  he  gave  bail  and  was 
released,  and  of  which,  on  appearing  before 
a  justice  of  the  peace  for  trial  on  the  next 
day,  and  no  one  appearing  to  prosecute  liim, 
he  was  finally  discharged. 

The  declaration  alleged  that  all  these  acts 
were  done  by  the  defendant's  agents  in  the 
line  of  their  employment,  and  that  the  de- 
fendant was  legally  responsible  therefor;  and 
that  the  plaintiff  had  been  thereby  put  to 
expense,  and  greatly  injured  in  mind,  body, 
and  r(>putation. 

At  the  trial,  and  before  the  introduction  of 
.any  evidence,  the  defendant,  by  its  coimsel, 
admitted  "that  the  arrest  of  the  plaintiff  was 
wrongful,  and  that  he  was  entitled  to  recover 
actual  damages  therefor;"  but  afterwards 
excepted  to  each  of  the  following  instructions 
given  bj^  the  circuit  judge  to  the  jury: 

"If  you  believe  the  statements  which  have 
been  made  by  the  plaintiff  and  the  witnesses 
who  testified  in  his  behalf,  (and  they  are  not 
denied,)  then  he  is  entitled  to  a  verdict  which 
will  fully  compensate  him  for  the  injuries 
which  he  sustained,  and  in  compensating  him 
you  are  authorized  to  go  beyond  the  amount 
that  he  has  accually  expended  in  employing 
coimsel;  you  may  go  beyond  the  actual  out- 
lay in  money  which  he  has  made.  He  was 
ari-ested  publicly,  without  a  warrant,  and 
without  cause;  and  if  such  conduct  as  has 
been  detailed  before  you  occurred,  such  as 
the  remark  that  was  addressed  by  the  con- 
ductor to  the  wife  in  the  plaintiff's  presence, 
in  compensating  him  you  have  a  right  to  con- 
sider the  humiliation  of  feeling  to  which  he 
Avas  thus  publicly  subjected.  If  the  com- 
pany, without  reason,  by  its  imlawful  and  op- 
pressive act,  subjected  him  to  this  pubUc  hu- 
miliation, and  thereby  outraged  his  feeUngs, 
he  is  entitled  to  compensation  for  that  inju- 
ry and  mental  anguish." 

"I  am  not  able  to  give  you  any  rule  by 
which  you  can  determine  that;  but,  bear  in 
inind,  it  is  strictly  on  the  line  of  compensa- 
tion. The  plaintiff"  is  entitled  to  compensa- 
tion in  money  for  humiliation  of  feeling  and 
spirit,  as  well  as  the  actual  outlay  which  he 
has  made  in  and  about  this  svdt." 

"And.  further,  after  agreeing  upon  the 
amount  which  wiU  fairly  compensate  the 
plaintiff  for  his  outlay  and  injured  fe;  lings, 
you  may  add  sometliing  by  way  of  punitive 
damages  against  the  defendant,  which  is 
sometimes  called  'smart  money,'  if  you  are 
satisfied  that  tlie  conductor's  conduct  was  ille- 
gal, (and  it  was  illegal,)  wanton,  and  oppress- 
ive. How  much  that  shall  be  the  court  can- 
not tell  you.  You  must  act  as  reasonable 
men,  and  not  indidge  vindictive  feelings 
towards  the  defendant." 

"If  a  public  corporation,  hke  an  individual. 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


29 


acts  oppropsivoly,  "U'antonly,  abuses  power, 
and  a  citizen  in  that  way  is  injured,  the  citi- 
zen, in  addition  to  strict  couipeusation,  may 
have,  ll;e  law  says,  something  in  tlie  Avay  of 
smart  money;  something:  as  punishment  for 
tlie  oppressive  use  of  power." 

Tlio  jury  returned  a  verdict  for  tlio  plaintiff 
in  the  sum  of  $10,000.  The  defendant  moved 
for  a  new  trial,  for  error  in  law,  and  for  ex- 
cessive damages.  The  plaintitf  thereupon,  by 
leave  of  court,  remitted  the  sum  of  !p-i,000, 
and  asked  that  judgment  be  entered  for  $(>,- 
000.  'Ihe  com't  then  denied  tlie  motion  for 
a  new  trial,  and  gave  judgment  for  the  plain- 
tiff for  .$0,000.  The  defendant  sued  out  this 
writ  of  error. 

Geo.  G.  Greene,  for  plaintiff  in  error.  W. 
A.  Foster,  for  defendant  in  error. 

Mr.  Justice  GRAY,  after  stating  the  case 
as  above,  deUvered  the  opinion  of  the  court. 

The  only  exceptions  taken  to  the  instruc- 
tions at  the  trial,  which  have  been  argued  in 
iliis  court,  are  to  those  on  the  subject  of  pimi- 
tive  dauiages. 

The  single  question  presented  for  our  de- 
cision, therefore,  is  whether  a  railroad  cor- 
poration can  be  charged  with  punitive  or  ex- 
emplary damages  for  the  illegal,  wanton,  and 
oppressive  conduct  of  a  conductor  of  one  of 
its  trains  towards  a  passengei*. 

This  question,  lilve  others  affecting  the  lia- 
bility of  a  railroad  corporation  as  a  common 
carrier  of  goods  or  passengers,— such  as  its 
right  to  contract  for  exemption  from  respon- 
sibihty  for  its  own  negligence,  or  its  liability 
beyond  its  own  line,  or  its  liability  to  one  of 
its  serv.ants  for  the  act  of  another  person  in 
its  employment,— is  a  question,  not  of  local 
laAV,  but  of  general  jurisprudence,  upon 
wliich  this  court,  in  the  absence  of  express 
statute  I'cgulating  the  subject,  will  exercise 
its  own  judgment,  uncontrolled  by  the  de- 
cisions of  the  courts  of  the  several  states. 
Railroad  Co.  v.  Lockwood,  17  AVall.  357,  3GS; 
Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins. 
Co.,  129  U.  S.  397,  443,  9  Sup.  Ct.  Rep.  4G9; 
My  rick  v.  Railroad  Co.,  107  U.  S.  102,  109,  1 
Sup.  Ot.  Rep.  425;  Hough  v.  Ifailway  Co.,  100 
U.  S.  213,  22G. 

Tlie  most  distinct  suggestion  of  the  doc- 
trine of  exemplary  or  pmiitive  damages  in 
England  before  the  American  Revolution  is 
to  be  found  in  the  remarks  of  Chief  Justice 
I'ratt  (afterwards  Lord  Camden)  in  one  of 
the  actions  against  the  king's  messengers  for 
trespass  and  imprisonment,  under  geiieral 
warrants  of  the  secretary  of  state,  in  which, 
ihe  plauitilf's  counsel  having  asserted,  and 
the  defendant's  counsel  having  denied,  the 
right  to  recover  "exemplaiy  damages,"  the 
chief  justice  instnicted  the  juiy  as  follows: 
"I  have  formerly  delivered  it  as  my  opinion 
on  another  occasion,  and  I  still  continue  of 
the  same  mind,  tliat  a  jury  have  it  in  their 
power  to  give  damages  for  more  than  the 
injury  received.    Damages  are  designed,  not 


only  as  a  satisfaction  to  the  injured  pei-son,. 
but  likewise  as  a  punish iiient  to  the  guilty, 
to  deter  from  any  such  proceeding  for  the  fu- 
ture, aiid  as  a  proof  of  the  detestation  of  the 
jury  to  the  action  itsdf."  Wilkes  v.  ■Woo<^l, 
Lofft,  1,  18,  19,  19  HoweU,  St.  T.  11.53,  1107, 
See,  also,  lluckle  v.  Money,  2  Wils.  205,  207; 
Sayer,  Dam.  218.  221.  The  recovery  of  dam- 
ages, beyond  compensation  for  the  injury  re- 
ceived, by  way  of  punishing  the  guilty,  and 
as  an  examnlo  to  deter  others  from  offending 
in  like  manner,  is  here  clearly  recogaiztMl. 

In  this  court  the  doctrine  is  well  settled 
that  in  actions  of  tort  the  jury,  in  addition  to 
the  sum  awarded  by  way  of  compensation 
for  the  plaintiff's  injury,  may  award  exem- 
plary, i)unitive,  or  vindictive  damages,  some- 
times called  "smart  money,"  if  the  defend- 
ant has  acted  wantonly,  or  oppressively,  or 
with  such  malice  as  implies  a  spirit  of  mis- 
chief or  criminal  indifference  to  civil  obliga- 
tions; but  such  guilty  intention  on  the  part 
of  tlie  defemiant  is  re(iuired  in  order  to 
charge  him  with  exemplary  or  punitive  dam- 
ages. The  Amiable  Nancy,  3  Wheat.  54G, 
558,  559;  Day  v.  Woodworth,  13  How.  363, 
371;  Railroad  Co.  v.  Quigley,  21  How.  202, 
213,  214;  Railway  Co.  v.  Arms,  91  U.  S.  4S0, 
493.  495;  Railway  Co.  v.  Humes,  115  U.  S. 
,5] 2,  521,  G  Sup.  Ct.  Rep.  110;  Barry  v.  Ek^l- 
inuuds,  IIG  U.  S.  550,  5G2,  563,  6  Sup.  Ct. 
Rep.  501;  Railway  Co.  v.  Harris,  122  U.  S. 
.597,  609.  610,  7  Sup.  Ct.  Rep.  12SG;  Railway 
Co.  V.  Beckwith,  129  U.  S.  26,  36,  9  Sup.  Ct. 
.Rep.  207. 

Exemplary  or  punitive  damages,  being 
awarded,  not  by  way  of  compensation  to  tlie 
sufferer,  but  by  way  of  punishment  of  the 
offender,  and  as  a  Avaming  to  others,  can 
only  be  aAvarded  against  one  who  has  partici- 
pated in  the  offense.  A  principal,  therefore, 
though  of  course  hable  to  make  compen- 
sation for  injuries  done  by  liis  agent  within 
the  scope  of  his  employment,  cannot  be  held 
liable  for  exemplary  or  punitive  damages, 
merely  by  reason  of  wanton;  oppressive,  op 
malicious  intent  on  the  part  of  the  agent. 
This  is  clearly  shown  by  the  judgment  of  this 
court  in  the  case  of  The  Amiable  Nancy,  3 
Wheat.  54G. 

In  that  case,  upon  a  libel  in  admiralty  by 
the  owner,  master,  supercargo,  and  crew  of 
a  neuti-al  vessel  against  the  owners  of  an 
American  privateer,  for  illegally  and  wanton- 
ly seizing  and  plundering  the  neutral  vessel 
and  maltreating  her  ofiicers  and  crew,  ^Nlr. 
Justice  Story,  speaking  for  the  court,  in  ISIS, 
laid  down  the  general  rule  as  to  the  liability 
for  exemplaiy  or  vindictive  damages  by  way 
of  punishment,  as  follows:  "Upon  the  facts 
disclosed  m  the  evidence,  this  must  be  pro- 
nounced a  case  of  gross  and  wanton  outrage, 
without  any  just  provocation  or  excuse.  Un- 
der such  circumstances,  the  honor  of  the 
country  and  the  duty  of  the  court  equally 
require  that  a  just  compensation  slio'jld  he 
made  to  the  unoffending  neutrals  for  all  the 
injuries    and    losses    actually    sustained    by 


30 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


them;  and,  if  this  wore  a  suit  against  the 
original  wrongdoers,  it  miglit  be  proper  to 
go  yet  farther,  and  visit  upon  tliem,  in  the 
shape  of  exemplary  damages,  the  proper  pun- 
isiiuient  wlilch  belongs  to  such  lawless  mis- 
conduct. But  it  is  to  be  considered  that  this 
is  a  suit  against  the  owners  of  the  privateer, 
upon  whom  the  law  has.  from  motives  of  pol- 
icy, devolved  a  responsibility  for  the  conduct 
of  tlie  officers  and  crew  employed  by  them, 
and  yet,  from  the  natiu-e  of  the  service,  they 
can  scarcely  ever  be  able  to  secure  to  them- 
selves an  adequate  indemnity  in  cases  of  loss. 
They  are  inuocent  of  the  demerit  of  this 
transaction,  having  neither  directed  it,  nor 
countenanced  it,  nor  participated  in  it  in  the 
slightest  degree.  Under  such  circumstances, 
we  are  of  the  opinion  that  they  are  bomid 
to  repair  all  the  real  injuries  and  personal 
wrongs  sustained  by  the  libelants,  but  they 
are  not  bound  to  the  extent  of  vindictive 
damages."    3  Wheat.  558,  559. 

The  rule  thus  laid  down  is  not  peculiar  to 
courts  of  admiralty;  for,  as  stated  by  the 
same  eminent  judge  two  years  later,  those 
courts  proceed,  in  cases  of  tort,  upon  the 
same  principles  as  courts  of  common  law,  in 
allowing  exemplary  damages,  as  well  as  dam- 
ages by  way  of  compensation  or  i-emunera- 
tion  for  expenses  incurred,  or  injui-ies  or  loss- 
f;s  sustained,  b^'  the  misconduct  of  the  other 
party.  Manufacturing  Co.  v.  Fiske,  2  Mason, 
ll'J,  121.1  III  Keene  v.  Lizardi,  S  La.  2G,  33, 
Judge  Martin  said:  "It  is  true,  juries  some- 
times very  properly  give  what  is  called  'smart 
money.'  They  are  often  warranted  in  giving 
vindictive  damages  as  a  pimishment  inflicted 
for  outrageous  conduct;  but  this  is  only  jus- 
tifiable in  an  action  against  the  wrongdoer, 
and  not  against  persons  who,  on  account  of 
their  relation  to  the  offender,  are  only  conse- 
quentially liable  for  his  acts,  as  the  princi- 
pal is  responsible  for  the  acts  of  his  factor  or 
agent."  To  the  same  effect  are  The  State 
Rights,  Crabbe,  42.  47,  48;  The  Golden  Gate, 
McAll.  104;  Wardrobe  v.  Stage  Co.,  7  Cal. 
118;  Boulard  v.  Calhoun.  13  La.  Ann.  445; 
Detroit  Daily  Post  Co.  v.  McArthur,  IG  Mich. 
447;  Grund  v.  Van  Meek,  69  111.  478,  481;  Beck- 
er V.  Dupree,  75  111.  167;  Rosenkrans  v.  Bar- 
ker, 115  lU.  331,  3  N.  E.  Rep.  93;  Kirksey  v. 
Jones,  7  Ala.  622,  029;  Pohock  v.  Gantt,  69 
Ala.  373,  379;  E vision  v.  Cramer,  57  Wis. 
570,  15  N.  W.  Rep.  760;  Haines  v.  Schultz, 
50  N.  J.  Law,  481,  14  Atl.  Rep.  488;  McCarthy 
V.  De  Arinit,  99  Pa.  St.  03,  72;  Clark  v.  New- 
sam,  1  Exch.  131,  140;  Clissold  v.  Machell, 
20  U.  C.  Q.  B.  422. 

The  rule  has  the  same  application  to  cor- 
porations as  to  individuals.  This  court  has 
often,  in  cases  of  this  class,  as  well  as  in 
oilier  cases,  affirmed  the  doctrine  that  for 
acts  done  by  the  agents  of  a  corporation,  in 
the  course  of  its  business  and  of  tlieir  em- 
ployment, the  corporation  is  responsible  in 
the  same  manner  and  to  the  same  extent  as 

1  Fed  Cas.  No.  1,681. 


an  individual  is  responsil)le  under  similar 
circumstances.  Railroad  Co.  v.  Quigley,  21 
How.  202,  210;  Bank  v.  Graham,  100  U.  S. 
099,  702;  Salt  Lake  City  v.  Hollister,  118  U. 
S.  250,  201,  0  Sup.  Ct.  Rep.  1055;  Railway 
Co.  V.  Harris,  122  U.  S.  597,  608,  7  Sup.  Ct. 
Rep.  12S0. 

A  corporation  is  doubtless  liable,  like  an 
individual,  to  make  compensation  for  any 
tort  committed  by  an  agent  in  the  course  of 
his  employment,  althougli  the  act  is  done 
wantonly  and  recklessly,  or  against  the  ex- 
press orders  of  the  principal.  Railroad  Co. 
v.  Derl)y,  14  How.  408;  Steamboat  Co.  v. 
Brockett,  121  U.  S.  037,  7  Sup.  Ct.  Rep.  1039; 
Howe  V.  Newmarch,  12  Allen,  49;  Ramsden 
V.  Railroad  Co.,  104  Mass.  117.  A  coipora- 
tion  may  even  be  held  hable  for  a  hbel,  or  a 
malicious  prosecution,  by  its  agent  witliin  the 
scope  of  his  employment;  and  the  malice 
necessary  to  support  either  action,  if  proved 
in  the  agent,  may  be  imputed  to  the  corpora- 
tion. Railroad  Co.  v.  Quigley,  21  How.  202, 
211;  Salt  Lake  City  v.  Holhster,  118  U.  S. 
250,  262,  0  Sup.  Ct.  Rep.  1055;  Reed  v.  Bank, 
L30  Mass.  443,  445,  and  cases  cited;  Krule- 
vitz  V.  Railroad  Co.,  140  Mass.  573,  5  N.  E. 
Rep.  500;  McDermott  v.  Journal,  43  N.  J. 
Law.  488,  and  44  N.  J.  Law,  430;  Bank  v. 
Owston,  4  App.  Cas.  270.  But,  as  Avell  ob- 
served by  Mr.  Justice  Field,  now  chief  jus- 
tice of  Massachusetts:  "The  logical  difficulty 
of  imputing  the  actual  malice  or  fraud  of  an 
agent  to  his  principal  is  perhaps  less  when 
tlie  principal  is  a  person  than  when  it  is  a 
corporation;  still  the  foundation  of  the  impti- 
lation  is  not  that  it  is  inferred  that  the  prin- 
cipal actually  participated  in  the  malice  or 
fraud,  but,  the  act  having  been  done  for  his 
beuedt  by  his  agent  acting  within  the  scope 
of  his  employment  in  his  business,  it  is  just 
tliat  he  should  be  held  responsible  for  it  in 
damages."  Lothrop  v.  Adams,  133  Mass.  471, 
480,  481. 

Though  the  principal  is  liable  to  make  com- 
pensation for  a  libel  published  or  a  malicious 
prosecution  instituted  by  his  agent,  he  is  not 
liable  to  be  puuislied  by  exemplaiy,  damages 
for  an  intent  in  which  he  did  not  participate. 
In  Detroit  Daily  Post  Co.  v.  McArthur,  in 
Eviston  V.  Cramer,  and  in  Haines  v.  Schultz, 
above  cited,  it  was  held  that  the  publisher  of 
a  newspaper,  when  sued  for  a  hbel  published 
therein  by  one  of  his  reporters  without  his 
knowledge,  was  liable  for  compensatory  dam- 
ages only,  and  not  for  punitive  damages,  un- 
less he  approved  or  ratified  the  publication; 
and  in  Haines  v.  Schultz  the  supreme  court  of 
New  Jersey  said  of  puuitive  damages:  "The 
right  to  award  them  rests  primarily  upon  the 
single  gromid, — wrongful  motive."  "It  is  the 
Avrongt'ul  personal  intention  to  injure  that 
calls  forth  the  penalty.  To  this  wrongful  in- 
tent knowledge  is  an  essential  prerequisite." 
"Absence  of  all  proof  bearing  on  the  essen- 
tial question,  to  wit,  defendant's  motive,  can- 
not be  permitted  to  take  the  place  of  evi- 
dence, without  leading  to  a  most  dangerous 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


31 


extension  of  the  doctrine  respondeat  supe- 
rior." 50  N.  J.  Law,  484,  485,  14  Atl.  Rep. 
488.  "Whether  a  principal  can  be  criminally 
pi'oseciited  for  a  libel  published  by  his  agent 
without  his  participation  is  a  question  on 
■which  the  autliorities  are  not  agreed;  and, 
where  it  has  been  held  that  lie  can,  it  is  ad- 
mitted to  be  an  anomaly  in  the  criminal  law. 
Com.  V.  Morgan,  107  INlass.  199,  20:j;  Reg.  v. 
Holbrook,  3  Q.  B.  Div.  GO,  G3,  04,  70,  4  Q.  B. 
Div.  4-_>,  51,  60. 

No  donl)t,  a  corporation,  like  a  natural  per- 
son, may  be  held  Uable  in  exemplaiy  or  puni- 
tive damages  for  the  act  of  an  agent  within 
tlie  scope  of  his  employment,  provided  the 
criminal  intent,  necessary  to  warrant  tlie  im- 
position of  such  damages,  is  brought  home  to 
the  corporation.  Railroad  Co.  v.  Quigley, 
Railway  Co.  v.  Arms,  and  Railway  Co.  v. 
Harris,  above  cited;  Caldwell  v.  Steamboat 
Co.,  47  N.  Y.  282;  Bell  v.  Railway  Co.,  10  C. 
B.  (N.  S.)  287,  4  Law  T.  (N.  S.)  293. 

Independently  of  this,  in  the  case  of  a  cor- 
Xjoration,  as  of  an  individual,  if  any  wanton- 
ness or  miscliief  on  the  part  of  the  agent, 
acting  witl^iin  the  scope  of  his  employment, 
causes  additional  mjury  to  the  plaintiff  in 
body  or  mind,  the  principal  is,  of  coui'se,  lia- 
l)le  to  make  compensation  for  the  whole  in- 
jury suffereiL  Kennon  v.  GUuier,  131  U.  S. 
22,  0  ,Sup.  Ct.  Rep.  G96;  Meagher  v.  Driscoll, 
99  IVIass.  281,  285;  Smith  v.  Holcomb,  Id.  552; 
Ilav.'es  V.  Knowles,  114  Mass.  518;  Campbell 
V.  Car  Co.,  42  Fed.  Rep.  484. 

In  the  case  at  bar,  the  defendant's  counsel 
having  admitted  in  open  court  "that  the  ar- 
rest of  the  plaintiff  was  wrongful,  and  that 
he  was  entitled  to  recover  actual  damages 
tlierefor."  the  jury  were  riglitly  instructed 
that  he  was  entitled  to  a  verdict  which  would 
fully  compensate  him  for  the  injuries  sus- 
tained, and  that  in  compensating  him  the 
jury  were  authorized  to  go  beyond  his  out- 
lay in  and  about  this  suit,  and  to  consider 
the  huuiiliation  and  outrage  to  which  he  had 
been  subjected  by  arresting  him  publicly 
without  warrant  and  without  cause,  and  by 
tlie  conduct  of  the  conductor,  such  as  his  re- 
mark to  the  plaintiil's  wife. 

But  the  court,  going  beyond  this,  distinctly 
Instructed  the  jury  that,  "after  agreeing  upon 
the  amount  which  will  fully  compensate  the 
plaintiff  for  his  outlay  and  injured  feelings," 
they  might  "add  something  by  way  of  puni- 
tive damages  against  the  defendant,  which  is 
sometimes  called  'smart  money,' "  if  they 
were  "satisfied  that  the  conductor's  conduct 
was  iUegal,  wanton,  and  oppressive." 

The  jury  were  thus  told,  in  the  plainest 
terms,  that  the  corporation  was  responsible  in 
punitive  damages  for  wantonness  and  oppi-es- 
sion  on  the  part  of  the  conductor,  although 
not  actually  participated  in  by  the  corpora- 
tion. This  ruling  appears  to  us  to  be  incon- 
sistent with  the  principles  above  stated,  un- 
supported by  any  decision  of  this  court,  and 
opposed  to  the  preponderance  of  well-consid- 
ered precedents. 


In  Railroad  Co.  v.  Derby,  which  was  an  ac- 
tion by  a  passenger  against  a  railroad  cor- 
poration for  a  personal  injury  suffered 
through  the  negligence  of  its  servants,  the 
jury  were  instructed  that  "the  damages,  if 
any  were  recoverable,  are  to  be  confined  to 
the  direct  and  immediate  consequences  of  the 
injury  sustained;"  and  no  exception  was 
taken  to  this  instruction.     14  How.  470,  471. 

In  Railroad  Co.  v.  Quigley,  which  was  an 
action  against  a  railroad  corporation  for  a 
libel  publislied  by  its  agents,  the  jury  re- 
turned a  verdict  for  the  plaintiff  under  an  in- 
struction that  "they  are  not  restricted  in  giv- 
ing damages  to  the  actual  positive  injury 
sustained  by  the  plaintiff,  but  may  give  such 
exemplary  damages,  if  any,  as  in  their  opin- 
ion are  called  for  and  justified,  in  view  of  all 
tlie  circumstances  in  this  case,  to  render 
reparation  to  the  plaintiff,  and  act  as  an  ade- 
quate punishinent  to  the  defendant."  This 
court  set  aside  the  verdict,  because  the  in- 
struction given  to  the  jury  did  not  accurately 
define  the  measure  of  the  defendant's  liabil- 
ity; and,  speaking  by  Mr.  Justice  Campbell, 
stated  the  rules  applicable  to  the  case  in  these 
words:  "For  acts  done  by  the  agents  of  the 
corporation,  either  in  contractu  or  in  delicto, 
in  the  course  of  its  business  and  of  their  em- 
ployment, the  corporation  is  responsible,  as 
an  individual  is  responsible  imder  similar  cir- 
cumstjinces."  "Whenever  the  injury  com- 
plained of  has  been  infiicted  maliciously  or 
wantonl3^  and  with  circumstances  of  con- 
tumely or  inilignity,  the  jury  are  not  hmited 
to  the  ascertainment  of  a  simple  compensa- 
tion for  the  wrong  committed  against  the  ag- 
grieved person.  But  the  malice  spoken  of  in 
this  rule  is  not  merely  the  doing  of  an  un- 
lawful or  injurious  act.  The  word  impUesf 
that  the  act  complained  of  was  conceived 
in  the  spirit  of  mischief,  or  criminal  inthffer- 
ence  to  civil  obligations.  Nothing  of  this 
kind  can  be  imputed  to  these  defendants." 
21  Hov,'.  210,  213,  214. 

In  Railway  Co.  v.  Arms,  wluch  was  an  ac- 
tion against  a  railroad  corporation,  by  a  pas- 
senger injured  in  a  collision  caused  by  the 
negligence  of  the  servants  of  the  corporation, 
the  jury  were  instructed  thus:  "If  you  find 
that  the  accident  was  caused  by  the  gross 
negligence  of  the  defendant's  servants  con- 
vrolling  the  train,  j^ou  may  give  to  the  plaintiff 
punitive  or  exemplary  damages."  This  court, 
speaking  by  Mr.  Justice  Davis,  and  approving 
and  applying  the  rule  of  exemplary  damages, 
as  stated  in  Quigley's  Case,  held  that  this 
was  a  misilirection,  and  that  the  failure  of 
the  employes  to  use  the  care  that  was  re- 
quired to  avoid  the  accident,  "whether  called 
'gross'  or  'ordinary'  negligence,  did  not  au- 
thorize the  jury  to  visit  the  company  with 
daniages  beyond  the  Uiiiit  of  compensation 
for  the  injury  actually  inflicted.  To  do  this, 
there  must  have  been  some  willful  miscon- 
duct, or  that  entire  want  of  care  which  would 
raise  the  presumption  of  a  conscious  indiffer- 
ence to  consequences.     Nothing  of  this  kind 


32 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


can  be  imputed  to  the  persons  in  charge  of 
the  train;  and  the  court,  tlierefore,  misdi- 
rected the  jury."     91  U.  S.  495. 

In  Railway  Co.  v.  Harris,  tlie  railroad  com- 
pany, as  the  record  showed,  by  an  armed 
force  of  several  hundred  men,  acting  as  its 
agents  and  employes,  and  organized  and  com- 
numdod  by  its  vice  president  and  assistant 
general  manager,  attacked  with  deadly  weap- 
ons the  agents  and  employes  of  another  com- 
l>any  in  possession  of  a  railroad,  and  forcibly 
drove  them  out,  and  in  so  doing  fired  upon 
and  injured  one  of  them,  who  tliereupon 
1)rought  an  action  against  the  corporation, 
and  I'ecovered  a  verdict  and  judgment  rmder 
an  instruction  that  the  jury  "were  not  lim- 
ited to  compensatory  damages,  but  could  give 
punitive  or  exemplai-y  damages,  if  it  was 
found  that  the  defendant  acted  with  bad  in- 
tent, and  in  pursuance  of  an  unlawful  pur- 
l^ose  to  forcibly  talie  possession  of  the  rail- 
way occupied  by  the  other  company,  and  in 
so  doing  shot  the  plaintiff."  This  court, 
speaking  by  Mr.  Justice  Harlan,  quoted  and 
ai)pi'ovod  the  rules  laid  down  in  Quigley's 
Oase,  and  affirmed  the  judgment,  not  because 
any  evil  intent  on  the  part  of  the  agents  of 
the  defendant  corporation  could  of  itself 
inake  the  corporation  responsible  for  exem- 
plary or  punitive  damages,  but  upon  the  sin- 
gle ground  that  the  evidence  clearly  showed 
tliat  the  corporation,  by  its  governing  officers, 
participated  in  and  directed  all  that  was 
Iilanned  and  done.  122  U.  S.  CIO,  7  Sup.  Ct. 
Rep.  1280. 

The  president  and  general  manager,  or,  in 
his  absence,  the  vice  president  in  liis  place, 
actually  wielding  the  whole  executive  power 
of  the  corporation,  may  weU  be  treated  as  so 
cfar  representing  the  corporation  and  identi- 
fied with  it  that  any  wanton,  malicious,  or 
oppressive  intent  of  his,  in  doing  wrongful 
acts  in  behalf  of  the  corporation  to  the  in- 
juiy  of  others,  may  be  treated  as  the  intent 
of  the  coiporation  itself;  but  the  conductor 
of  a  train,  or  other  subordinate  agent  or  serv- 
ant of  a  railroad  corporation,  occupies  a  very 
different  position,  and  is  no  more  identified 
with  his  principal,  so  as  to  affect  the  latter 
with  his  own  unlawful  and  criminal  intent, 
than  any  agent  or  servant  standing  in  a  cor- 
responding relation  to  natural  persons  carry- 
ing on  a  manufactory,  a  mine,  or  a  house  of 
trade  or  commerce. 

Tlie  law  applicable  to  this  case  has  been 
found  nowhere  better  stated  than  by  Mr. 
Justice  Brayton,  afterwards  chief  jtistice  of 
Rliode  Island,  in  the  earliest  reported  case 
of  the  kind,  in  which  a  passenger  sued  a  rail- 
road corporation  for  his  wrongful  expulsion 
from  a  train  by  the  conductor,  and  recovered 
a  verdict,  but  excepted  to  an  instruction  to 
llie  jury  tliat  "punitive  or  vindictive  dam- 
ages, or  smart  money,  were  not  to  be  allowed 
as  against  the  principal,  unless  the  principal 
participated  in  the  wrongful  act  of  the  agent, 
expressly  or  impliedly,  by  his  conduct  au- 
Ihorizuig  it  or  approving  it,  either  before  or 


after  it  was  committed."  This  instruction 
was  held  to  be  right,  for  the  following  rea- 
sons: "Ln  cases  where  punitive  or  exemplary 
damages  have  been  assessed,  it  has  been 
done,  upon  evidence  of  such  willfulness,  reck- 
lessness, or  wickedness,  on  the  part  of  the 
party  at  fault,  as  amounted  to  criminality, 
which  for  the  good  of  society  and  warning^ 
to  the  individual,  ought  to  be  punished.  If 
in  such  cases,  or  in  any  case  of  a  civil  nature^ 
it  is  the  policy  of  the  law  to  visit  upon  the 
offender  such  exemplary  damages  as  will 
opei'ate  as  pimishment,  and  teach  the  lesson 
of  caution  to  prevent  a  repetition  of  criminal- 
ity, yet  we  do  not  see  how  such  damages  can 
be  allowed,  where  the  principal  is  prosecuted 
for  the  tortious  act  of  his  servant,  tmless 
there  is  proof  in  the  cause  to  implicate  the 
principal  and  make  him  particeps  crimmis  of 
his  agent's  act.  No  man  should  be  punished 
for  that  of  Avhich  he  is  not  guilty."  "Where 
ihe  proof  does  not  imphcate  the  principal, 
and,  however  wicked  the  servant  may  have 
been,  the  principal  neitlier  expressly  nor  im- 
pliedly authorizes  or  ratifies  the  act,  and  the 
ci'iminality  of  it  is  as  nuich  against  him  as 
against  any  other  member  of  society,  we 
tliink  it  is  quite  enough  that  he  shall  be  liable 
in  compensatory  damages  for  the  mjury  sus- 
tained in  consequence  of  the  wrongf  td  act  of 
a  person  iicting  as  his  servant."  Hagan  v. 
Railroad  Co.,  3  R.  I.  88,  91. 

The  hke  view  was  expressed  by  the  court 
of  appeals  of  New  York,  in  an  action  brought 
against  a  railroad  corporation  by  a  passenger 
for  injuries  suffered  by  the  neglect  of  a 
switchman,  who  was* intoxicated  at  the  time 
of  the  accident.  It  was  held  that  evidence 
tJiat  the  switchman  was  a  man  of  intem- 
perate habits,  which  was  known  to  the  agent 
of  the  company  having  the  power  to  employ 
and  discharge  him  and  other  subordinates, 
was  competent  to  support  a  claim  for  ex- 
emplarj'  damages,  but  that  a  direction  to  the 
jury  in  general  terms  that  in  awarding  dam- 
ages they  might  add  to  full  compensation  for 
the  injury  "such  sum  for  exemplary  damages 
as  the  case  calls  for,  depending  in  a  great 
measure,  of  course,  upon  the  conduct  of  the 
defendant,"  entitled  the  defendant  to  a  new 
trial;  and  Chief  Justice  Church,  delivering- 
the  unanimoiLS  judgment  of  the  court,  stated 
the  rtde  as  follows:  "For  injuries  by  the 
negligence  of  a  servant  whUe  engaged  in  the 
business  of  the  master,  within  the  scope  of  his 
employment,  the  latter  is  liable  for  compen- 
satory damages;  but  for  such  negligence, 
however  gross  or  culpable,  he  is  not  Uable  to 
be  punished  in  punitive  damages  unless  he 
is  also  chargeable  with  gross  misconduct. 
Such  misconduct  may  be  established  by  show- 
i)ig  that  the  act  of  the  seiwant  was  author- 
ized or  ratified,  or  that  the  master  employed 
or  retained  the  servant,  knowing  that  he  was 
incompetent,  or,  from  bad  habits,  unfit  for 
the  position  he  occupied.  Something  more 
than  ordinary  ncghgence  is  requisite;  it  must 
be  reckless,  and  of  a  criminal  nature,  and 


COMPENSATORY  AND  EXKMl'LAKV  DAMA(JES. 


33 


flcarly  ostablisluHl.  CorpdiMTions  may  iiicur 
Diis  liability  as  well  as  private  persons.  If  a 
railroad  company,  for  instance,  knowingly 
and  wantonly  employs  a  dnmken  eni^inccr 
or  switchman,  or  retains  one  after  knowledge 
>i  iiis  liabits  is  clearly  brought  home  to  the 
company,  or  to  a  superintending  agent  au- 
thoriz(>d  to  employ  and  discharge  him,  and  in- 
jury occurs  by  reason  of  such  habits,  the 
(!ompany  may  and  ought  to  be  amenable 
to  the  severest  rule  of  damages;  but  I  am  not 
aware  of  any  principle  wliicli  permits  a  jury 
to  award  exemplary  damages  in  a  case  which 
does  not  come  \ip  to  this  standard,  or  to 
graduate  the  amount  of  such  damages  by 
their  views  of  the  propriety  of  the  conduct  of 
the  defendant,  unless  such  conduct  is  of  the 
character  before  specitied."  Cleghoru  v. 
Railroad  Co.,  56  N.  Y.  44,  47,  48. 

Similar  decisions,  denying  upon  like  grounds 
the  lial>ility  of  railroad  companies  and  other 
corporations,  sought  to  be  charged  with  pimi- 
tive  damages  tor  the  wanton  or  oppressive 
acts  of  their  agents  or  servants,  not  partic- 
ipated in  or  ratiiied  by  the  corporation, 
have  been  made  by  the  courts  of  New  Jersey, 
Pennsylvania.  Delaware,  Michigan,  Wiscon- 
sin. California,  Louisiana,  Alabama,  Texas, 
and  West  Virginia. 

It  must  be  admitted  that  there  is  a  wide 
divergence  in  the  decisions  of  the  state  courts 
upon  this  question,  and  that  corporations 
have  been  lield  liable  for  such  damages  im- 
der  siniilar  circumstances  in  New  Hamp- 
shire, in  Maine,  and  in  many  of  the  western 
and  southern  states.  But  of  the  three  lead- 
ing cases  on  that  side  of  the  question,  Hop- 
Icuis  V.  Railroad  Co.,  30  N.  H.  9,  can  hardly 
be  reconciled  with  the  later  decisions  in  Fay 
V.  Parker,  58  N.  H.  342,  and  Bixby  v.  Duidap, 
56  N.  H.  4.56;  and  in  Goddard  v.  Railway  Co., 
07  Maine,  202,  228,  and  Railway  Co.  v.  Dunn, 
LAW  DA:\r.2d  Ed.— 3 


19  Oliio  St.  Iti2,  590,  there  were  strong  dis- 
senting opinions.  In  many,  if  not  most,  of  the 
other  cases,  either  corporations  were  put 
upon  differtMit  grounds  Ln  this  respect  from 
other  principals,  or  else  the  distinction  be- 
tween imputing  to  the  corporation  such 
wrongful  act  and  intent  as  woidd  rendei-  it 
liable  to  make  compensation  to  the  person 
uijured,  and  imputing  to  the  corporation  the 
intent  necessary  to  be  established  in  order 
to  subject  it  to  exemplary  damages  by  way  of 
punishment,  was  overlooked  or  disregarded. 

Most  of  the  cases  on  both  sides  of  the  ques- 
tion, not  specifically  cited  above,  are  collected 
in  1  Setlg.  Dam.  (8th  Ed.)  §  ;5S0. 

In  the  case  at  bar,  the  plaintiff  does  not  ap- 
pear to  have  contended  at  the  ti-ial,  or  to 
have  introduced  any  evidence  tending  to 
show,  that  the  co«ductor  was  kno\\'n  to  the 
defendant  to  be  an  imsuitable  person  in  any 
respect,  or  that  the  defendant  in  any  way 
participated  in,  approved,  or  ratiiied  his  treat- 
ment of  the  i)laintilT;  nor  did  the  tnstiiictions 
given  to  the  jury  require  them  to  be  sati:.tied 
of  any  such  fact  before  awarding  punitive 
damages;  but  the  only  fact  which  they  were 
required  to  find,  in  order  to  support  a  claim 
for  punitive  damages  against  the  corpora- 
tion, was  that  the  conductor's  illegal  conduct 
was  •\A-aulon  and  oppressive.  For  this  error, 
as  we  cannot  know  how  much  of  the  verdict 
was  intended  by  the  jury  as  a  compensation 
for  the  plaintiff's  injury,  and  how  much  by 
way  of  pimishiug  the  corporation  for  an  in- 
tent in  which  it  had  no  part,  the  judgment 
must  be  reversed,  and  the  case  remanded  to 
ihe  circuit  court,  with  directions  to  set  aside 
tlie  verdict,  and  to  order  a  new  trial. 

INJr.  Justice  FIELD,  Mr.  Justice  HARLAN, 
ajid  Mr.  Justice  LAMAJl  took  no  part  in  this 
decision. 


34 


COMPENSATORY  AND  EXEMrLARY  DAMAGES. 


GODDAKD  V.  GRAND  TRUNK  RY.  OF 
CANADA. 

(57  Me.  202.) 

Supreme  Judicial  Court  of  Maiue.    1SC9. 

Action  agaiust  the  Grand  Trunk  Railway  of 
Canada  to  recover  damages  for  an  assault 
made  on  a  passenger  by  a  brakoman  in  defend- 
ant's employment.  There  was  a  verdict  for 
plaintiff,  to  which  defendant  excepted. 

G.  F.  Shepley,  for  plaintiff.  P.  Barnes,  for 
defendant. 

WALTON,  J.  Two  questions  are  presented 
for  our  consideration:  First,  is  the  common 
carrier  of  passengers  responsible  for  the  will- 
ful misconduct  of  his  servant?  or,  in  other 
words,  if  a  passenger  who  has  done  nothing 
to  forfeit  his  right  to  civil  treatment,  is  as- 
saulted and  grossly  insulted  by  one  of  the 
carrier's  servants,  can  he  look  to  the  carrier 
for  redress?  and,  secondly,  if  he  can,  what  is 
the  measure  of  relief  which  the  law  secures 
to  him?  These  are  questions  that  deeply 
concern,  not  only  the  numerons  railroad  and 
steamboat  companies  engaged  in  the  trans- 
portation of  passengers,  but  also  the  whole 
traveling  public;  and  we  have  endeavored  to 
give  them  that  consideration  Avhich  their 
great  importance  has  seemed  to  us  to  de- 
mand. 

I.  Of  the  carder's  liability.     It  appears  in 
evidence,  that  the  plaintiff  was  a  passenger 
in  the  defendants'  railway  car;    that,  on  re- 
quest, he  surrendered  his  ticket  to  a  brake- 
man  employed  on  the  train,  who,  in  the  ab- 
sence of  the  conductor,   was   authorized  to 
demand  and  receive  it;    that  the  brakeman 
afterwards  approached  the  plaintiff,  and,  in 
language  coarse,  profane,  and  grossly  insult- 
ing, denied  that  he  had  either  surrendered  or 
shown   him   his  ticket;    that  the  brakeman 
called  the  plaintiff  a  liar,  charged  him  witli 
attempting  to  avoid  the  payment  of  his  fare, 
and  with  having  done  the  same  thing  before, 
and  threatened  to  split  his  head  open  and 
spill  his  brains  right  there  on  the  spot;   that 
the    brakeman  stepped  forward  and    placed 
his  foot  upon  the  seat  on  which  the  plaintiff 
was  sitting,  and,  leaning  over  the  plaintiff, 
brought  his  fist  close  down  to  his  face,  and 
shaking  it  violently,  told  him  not  to  yip,  if 
he  did  he  would  spot  him,   that  he  was  a 
damned  liar,  that  he  never  handed  him  his 
ticket,  that  he  did  not  believe  he  paid  his 
fare  either  way;    that  this  assault  was  con- 
tinued some  fifteen  or  twenty  minutes,  and 
until  the  Avhistle  sounded  for  the  next  sta- 
tion;    that   there   were   several    passengers 
present    in    the    car,  some  of    whom  were 
ladies,  and  that  they  were  all  strangers  to 
the  plaintiff;    that  the  plaintiff  was  at  the 
time    in   feeble   health,    and    had   been   for 
some  time  under  the  care  of  a  physician,  and 
at  the  time  of  the  assault  was  reclining  lan- 
guidly in  his  ^-eat;    that  he  had  neither  said 
nor  done  anything  to  provoke  the  assault; 


that,  in  fact,  he  bad  paid  his  fare,  had  receiv- 
ed a  ticket,  and  had  surrendered  it  to  this 
very  brakeman  who  delivered  it  to  the  con- 
ductor only  a  few  minutes  before,  by  whom 
it  was  afterwards  produced  and  identified; 
that  the  defendants  were  immediately  noti- 
fied of  the  misconduct  of  the  brakeman,  but, 
instead  of  discharging  him,  retained  him  in 
his  place;  that  the  brakeman  was  still  in 
the  defendants'  employ  when  the  case  was 
tried  and  was  present  in  court  during  the 
trial,  but  was  not  called  as  a  witness,  and  no 
attempt  was  made  to  justify  or  excuse  his 
conduct. 

Upon  this  evidence  the  defendants  contend 
that  they  are  not  liable,  because,  as  they  say. 
the  brakeman's  assault  upon  the  plaintiff 
was  willful  and  malicious,  and  was  not  di- 
rectly nor  impliedly  authorized  by  them. 
They  say  the  substance  of  the  whole  case  is 
this,  that  "the  master  is  not  responsible  as  a 
trespasser,  unless  by  direct  or  implied  au- 
thority to  the  servant,  he  consents  to  the  un- 
lawful act." 

The  fallacy  of  this  argument,  when  applied 
to  the  coanmon  carrier  of  passengers,  consists 
in  not  discriminating  between  the  obligation 
which  he  is  mider  to  his  passenger,  and  the 
duty  which  he  owes  a  stranger.  It  may  be 
true  that  if  the  carrier's  servant  willfully 
and  maliciously  assaults  a  stranger,  the  mas- 
ter will  not  be  liable;  but  the  law  is  other- 
wise when  he  assaults  one  of  his  master's 
passengers.  The  carrier's  obligation  is  to 
carry  his  passenger  safely  and  properly,  and 
to  treat  him  respectfully,  and  if  he  intrusts 
the  performance  of  this  duty  to  his  servants, 
the  law  holds  him  responsible  for  the  man- 
ner in  which  they  execute  the  trust.  The 
law  seems  to  be  now  well  settled  that  the 
carrier  is  obliged  to  protect  his  passenger 
from  violence  and  insult,  from  whatever 
source  arising.  He  is  not  regarded  as  an  in- 
surer of  his  passenger's  safety  against  every 
possible  source  of  danger;  but  he  is  bound  to 
use  all  such  reasonable  precautions  as  hunian 
judgment  and  foresight  are  capable  of,  to 
make  his  passsnger's  journey  safe  and  com- 
fortable. He  must  not  only  protect  his  pas- 
senger against  the  violence  and  insults  of 
strangers  and  co-passengers,  but  a  fortiori, 
against  the  violence  and  insults  of  his  own 
servants.  If  this  duty  to  the  passenger  is 
not  performed,  if  this  protection  is  not  fur- 
nished, but  on  the  contrary,  the  passenger  is 
assaulted  and  insulted,  through  the  negli- 
gence or  the  willful  misconduct  of  the  car- 
rier's servant,  the  carrier  is  necessarily  re- 
sponsible. 

And  it  seems  to  us  it  would  be  cause  of 
profound  regret  if  the  law  Avere  otherwise. 
The  earner  selects  his  own  servants  and  can 
discharge  them  when  he  pleases,  and  it  's 
but  reasonable  that  he  should  be  responsible 
for  the  manner  in  which  they  execute  their 
trust.  To  their  care  and  fidelity  are  intrust- 
ed the  lives  and  limbs  and  comfort  and  con- 
venience of  the  whole  traveling  public,  and  it 


COMPENSATORY  AND  ICXEMPLARY  DAMAGES. 


85 


is  certainly  as  important  tbat  these  servants 
should  be  trustworthy  as  it  is  that  they 
should  be  competent.  It  is  not  sufticieut  that 
they  are  capable  of  doinj?  well,  if  in  fact 
they  choose  to  do  ill;  that  they  can  be  as 
polite  as  a  Chesterlield,  if,  in  their  inter- 
<;ourse  with  the  passengers,  they  choose  to 
be  coarse,  brutal,  and  profane.  The  best  se- 
curity the  traveler  can  have  that  these  serv- 
ants will  be  selected  with  care,  is  to  hold 
those  by  whom  the  selection  is  made  respon- 
sible for  their  conduct. 

This  liability  of  the  master  is  very  clearly 
expressed  in  a  recent  case  in  Massachusetts. 
The  court  say,  that  wherever  there  is  a  con- 
tract between  the  master  and  another  per- 
son, the  master  is  responsible  for  the  acts  of 
his  servant  in  executing  that  contract,  al- 
though the  act  is  fraudulent  and  done  with- 
out his  consent.  Howe  v.  Newmarch,  12  Al- 
len, o5  (paragraph  neai'est  the  bottom  of  the 
page).  And  Messrs.  Angell  and  Ames,  in 
their  work  on  Coi-porations  (ISth  Ed.]  p.  40-1, 
§  388),  say:  "A  distinction  exists  as  to  the 
liability  of  a  corporation  for  the  willful  tort 
of  its  servant  toward  one  to  whom  the  corpo- 
ration owes  no  duty  except  such  as  each  citi- 
zen owes  to  every  other;  and  that  toward 
one  who  has  entered  into  some  peculiar  con- 
tract Avith  the  corporation  by  which  this  duty 
is  increased;  thus  it  has  been  held  that  a 
railroad  corpoi-ation  is  liable  for  the  willful 
tort  of  its  servants  whereby  a  passenger  on 
the  train  is  injured." 

In  Brand  v.  Railroad  Co.,  8  Barb.  368,  the 
court  say,  a  passenger  on  board  a  stage-coach 
or  railroad-car,  and  a  person  on  foot  in  the 
street,  do  not  stand  in  the  same  relation  to 
the  carrier.  Toward  the  one  the  liability  of 
the  carrier  springs  from  a  contract,  ex- 
press or  implied,  and  upheld  by  an  adequate 
consideration.  Toward  the  other  he  is  under 
no  obligation  but  that  of  justice  and  humani- 
ty. Hence  a  passenger,  who  is  injured  by  a 
servant  of  the  carrier,  may  have  a  right  of 
action  against  him  when  one  not  a  passen- 
ger, for  a  similar  injury,  would  not. 

In  Moore  v.  Railroad  Co.,  4  Gray,  4G5,  the 
plaintiff  was  forcibly  put  out  of  a  car  for  not 
giving  up  his  ticket  or  paying  his  fare,  when 
in  fact  he  had  already  surrendered  his  ticket 
to  some  one  employed  on  the  train.  The  de- 
fendants insisted  that  they  were  not  respon- 
sible for  the  misconduct  of  the  conductor; 
and  further,  that  an  action  for  an  assault 
would  not  lie  against  a  corporation.  But  the 
court  held  otherwise,  and  the  plaintiff  recov- 
ered. 

In  Seymour  v.  Greenwood,  7  Hurl.  &  N. 
354,  the  plaintiff  was  assaulted  and  taken 
out  of  the  defendant's  omnibus  by  one  of 
his  servants.  The  defendant  insisted  that 
he  was  not  liable,  because  it  did  not  appear 
that  he  authorized  or  sanctioned  the  act  of 
the  servant.  But  it  was  held  in  the  ex- 
chequer chamber,  affirming  the  judgment  of 
the  exchequer  court,  that  the  jury  did  right 
In  retui'ning  a  verdict  for  the  plaintiff. 


In  Railroad  Co.  v.  Finney,  10  Wis.  3SS,  the 
plaintiff  was  unlawfully  put  out  of  a  car  by 
the  conductor.  After  stating  that  it  was  in- 
sisted, by  the  counsel  for  the  railroad,  that 
in  no  case  could  a  cause  of  action  arise 
against  the  principal  for  the  willful  miscon- 
duct of  the  agent,  the  court  went  on  to  say, 
that  after  a  careful  examination  of  the  posi- 
tion, they  were  satisfied  it  was  not  correct; 
that  where  the  misconduct  of  the  agent 
causes  a  breach  of  the  principal's  contract, 
he  will  be  liable  whether  such  misconduct 
be  willful  or  merely  negligent 

In  Railroad  Co.  v.  Vandiver,  42  Pa.  St.  3G5, 
a  passenger  received  injuries,  of  which  he 
died,  by  being  thrown  from  the  platform  of 
a  railroad  car  because  he  refused  to  pay  his 
fare  or  show  his  ticket,  he  averring  he  had 
bought  one  but  could  not  find  it.  The  evi- 
dence showed  he  was  partially  intoxicated. 
It  was  urged  in  defense  that  if  the  passen- 
ger's death  was  the  result  of  force  and  vio- 
lence, and  not  the  result  of  negligence,  then 
(such  force  and  violence  being  the  act  of  the 
agents  alone  without  any  command  or  order 
of  the  company)  the  company  was  not  re- 
sponsible therefor.  But  the  court  held  oth- 
erwise. "A  railway  company,"  said  the 
court,  "selects  its  own  agents  at  its  own 
pleasure,  and  it  is  bound  to  employ  none; 
except  capable,  prudent,  and  humane  men. 
In  the  present  case  the  company  and  its 
agents  were  all  liable  for  the  injury  done  to 
the  deceased." 

In  Weed  v.  Railroad  Co.,  17  N.  Y.  302.  the 
jury  found  specially  that  the  act  of  the  serv- 
ant by  which  tlie  plaintiff  was  injured,  was 
willful.  The  court  held  the  willfulness  of 
the  act  did  not  defeat  the  plaintiffs  right  to 
look  to  the  railroad  company  for  redress. 

In  Railroad  Co.  v.  Derby,  14  How.  403, 
Avhere  the  servant  of  a  railroad  company 
took  an  engine  and  run  it  over  the  road  for 
his  own  gratihcation,  not  only  without  con- 
sent, but  contrary  to  express  orders,  the  su- 
preme court  of  the  United  States  held  that 
the  raili-oad  company  was  responsible.    . 

In  Railway  Co.  v.  Hinds,  53  Pa.  St.  512,  a 
passenger's  arm  was  broken  in  a  tight  be- 
tween some  drunken  persons  that  forced 
their  way  into  the  car  at  a  station  near  an 
agricultui-al  fair,  and  the  company  was  held 
responsible,  because  the  conductor  went  on 
collecting  fares,  and  did  not  stop  the  train 
and  expel  the  rioters,  or  demonstrate,  by  an 
earnest  effort,  that  it  was  impossible  to  do 
so. 

In  Flint  v.  Transportation  Co.,  34  Conn. 
554,  where  the  plaintiff  was  injured  by  the 
discharge  of  a  gun  dropped  by  some  soldiers 
engaged  in  a  scuffle,  the  court  held  that  pas- 
senger carriers  are  bound  to  exercise  the  ut- 
most vigilance  and  care  to  guard  those  they 
transport  from  violence  from  whatever 
source  arising;  and  the  plaintiff  recovered  a 
verdict  for  $10,000. 

In  Landreaux  v.  Bell,  5  La.  O.  S.  275,  the 
court  say,  that  carriers  are  responsible  fox* 


36 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


the  miscouduct  of  their  servants  toward  pas- 
sengers to  the  same  extent  as  for  their  mis- 
conduct in  regard  to  merchandise  committed 
to  their  care;  that  no  satisfactory  distinction 
can  be  drawn  between  the  two  cases. 

In  Cliamberlain  v.  Chandler,  3  Mason,  242, 
Judge  Story  declared  in  language  strong  and 
emphatic,  that  a  passenger's  contract  enti- 
tles him  to  respectful  treatment;  and  he  ex- 
pressed the  hope  that  every  violation  of  this 
right  would  be  visited,  in  the  shape  of  dam- 
ages, with  its  appropriate  punishment. 

In  Nioto  V.  Clark,  1  Cliff.  115,  Avhere  the 
steward  of  the  ship  assaulted  and  grossly  in- 
sulted a  female  passenger.  Judge  Clifford  de- 
clares, »in  language  ecpially  emphatic,  that 
the  contract  of  all  pass.engers  entitles  them 
to  respectful  treatment  and  protection 
against  rudeness  and  every  wanton  interfer- 
ence with  their  persons  from  all  those  in 
charge  of  the  ship;  that  the  conduct  of  the 
steward  disqualified  him  for  his  situation, 
and  justified  the  master  in  immediately  dis- 
charging him,  although  the  vessel  was  then 
in  a  foreign  port.  And  we  have  his  authori- 
ty for  saying  that  he  has  recently  examined 
the  question  with  care,  in  a  case  pending 
in  the  Rhode  Island  district,  where  the  clerk 
of  a  steamboat  unjustitiably  assaulted  and 
maltreated  a  passenger,  and  that  he  enter- 
tains no  doubt  of  the  carrier's  liability  to 
compensate  the  passenger  for  the  injury  thus 
received,  whether  the  carrier  previously  au- 
thorized or  subsequently  ratified  the  assault 
or  not.  A  report  of  the  case  will  soon  be 
published.     See  3  Cliff. 

And  a  recent  and  well-considered  case  in 
Maryland  (published  since  this  case  has  been 
pending  before  the  law  court,  and  very  much 
like  it  in  all  respects),  fuUy  sustains  this 
view  of  the  law.  Railroad  Co.  v.  Blocher, 
27  Md.  277. 

The  grounds  of  the  carrier's  liability  may 
be  briefly  stated  thus: 

The  law  requires  the  common  carrier  of 
passengers  to  exercise  the  highest  degree  of 
care  that  human  judgment  and  foresight  are 
capable  of,  to  make  his  passenger's  journey 
safe.  Whoever  engages  in  the  business  im- 
pliedly promises  that  his  passenger  shall 
have  this  degree  of  care.  In  other  words, 
the  carrier  is  conclusively  presumed  to  have 
promised  to  do  what,  under  the  circumstan- 
ces, the  law  requires  him  to  do.  We  say 
conclusively  presumed,  for  the  law  will  not 
allow  the  carrier  by  notice  or  special  con- 
tract even  to  deprive  his  passenger  of  this 
degree  of  care.  If  the  passenger  does  not 
have  such  care,  but  on  the  contrary  is  un- 
lawfully assaulted  and  insulted  by  one  of  the 
very  -i)ersons  to  whom  his  conveyance  is  in- 
trusted, the  carrier's  implied  promise  is  bro- 
ken, and  his  legal  duty  is  left  unperformed, 
and  he  is  necessarily  responsible  to  the  pas- 
senger for  the  damages  he  thereby  sustains. 
The  passenger's  remedy  may  be  either  in 
assumpsit  or  tort,  at  his  election.  In  the 
one   case,   ne   relies   upon  a    breach   of  the 


carrier's  common-law  duty  in  support  of  his 
action;  in  the  other,  upon  a  breach  of  his 
implied  promise.  The  form  of  the  action  is 
important  only  upon  the  question  of  dam- 
ages. In  actions  of  assumpsit,  the  damages 
are  generally  limited  to  compensation.  In 
actions  of  tort,  the  jury  are  allowed  greater 
latitude,  and,  in  proper  cases,  may  give  ex- 
emplai-y  damages. 

II.  We  now  come  to  the  second  branch  of 
the  case.  AVhat  is  the  measure  of  relief 
which  the  law  secures  to  the  injured  party; 
or,  in  other  words,  can  he  recover  exemplary 
damages?  We  hold  that  he  can.  The  right 
of  the  jury  to  give  exemplary  damages  for 
injuries  wantonly,  recklessly,  or  maliciously 
inflicted,  is  as  old  as  the  right  of  trial  by 
jury  itself;  and  is  not,  as  many  seem  to  sup- 
pose, an  innovation  upon  the  rules  of  the 
common  law.  It  was  settled  in  England 
more  than  a  century  ago. 

In  17G3,  Lord  Chief  Justice  Pratt  (after- 
wards Earl  of  Camden),  with  whom  the  oth- 
er judges  concurred,  declared  that  the  jury 
had  done  right  in  giving  exemplary  damages. 
Huckle  V.  JMoaiey,  2  Wils.  20"). 

In  another  case  the  same  learned  judge 
declared  with  emphasis,  that  damages  ar(i 
designed  not  only  as  a  satisfaction  to  the  in- 
jured pei-son,  but  likewise  as  a  punishment 
to  the  guilty.  5  Camp.  Lives  Chan.  (Am. 
Ed.)  p.  214. 

In  1814,  the  doctrine  of  punitive  damages 
Avas  stringently  applied  in  a  case  where  tl*& 
defendant,  in  a  state  of  intoxication,  forced 
himself  into  the  plaintiff's  company,  and  in- 
solently persisted  in  hunting  upon  his 
grounds.  The  plaintiff'  recovered  a  verdict 
for  five  hundred  pounds,  the  full  amount  of 
his  ad  damnum,  and  the  court  refused  to 
set  it  aside.  Mr.  Justice  Heath  remarked 
in  this  case  that  he  remembered  a  case  where 
the  jury  gave  five  hundred  pounds  for  mere- 
ly knocking  a  man's  hat  off",  and  the  court 
refused  a  nev/  trial.  It  goes,  said  he,  to  pre- 
vent the  practice  of  dueling,  if  juries  are 
permitted  to  punish  insult  by  exemplary 
damages.  Merest  v.  Harvey,  5  Taunt.  442. 
See,  also,  to  the  same  effect.  Sears  v.  Lyon, 
2  Starkie,  317  (decided  in  ISIS). 

In  1844,  Lord  Chief  Baron  Pollock  said,  that 
in  actions  for  malicious  injuries,  juries  had 
always  been  allowed  to  give  what  are  called 
vindictive  damages.  Doe  v.  Filliter,  13  Mees. 
&  W.   50. 

In  1S5S,  in  an  action  of  trespass  for  tak- 
ing personal  property  on  a  fraudulent  bill 
of  sale,  the  defendant's  coimsel  contended 
that  it  was  not  a  case  for  the  application 
of  the  doctrine  of  exemplary  damages;  but 
the  court  held  othei-^vise.  No  doubt,  said 
Pollock,  C.  B.,  it  was  a  case  in  which  vin- 
dictive damages  might  l>e  given.  Thomas  v. 
Harris.  3  Hurl.  &  N.  961. 

In  ISGO,  in  an  action  for  willful  negligence, 
the  defendant  contended  that  the  plaintiff's 
declaration  was  too  defective  to  entitle  him 
to   exemplary   damages;    but   the  coin-t   held 


COMPENSATOUY  ANI>  KXK.Mri.AUY  DAMACiES. 


37 


otherwise;  and  the  judse  who  tiicil  the  case 
remarked  that  he  was  glad  the  court  had 
come  to  tho  conclusion  that  it  was  competent 
for  the  jm\y  to  give  exemplary  ilamages,  for 
he  thought  the  defendant  had  acted  with  a 
high  hand.  Eniblen  v.  Myers,  0  Hurl.  &  N. 
54. 

"Damages  exemplary,"  is  now  a  familiar 
title  in  the  best  English  law  reports.  See 
C  Hurl.  &  N.  9G9. 

It  Avas  the  firmness  with  which  Lord  Cam- 
den (then  Chief  Justice  Pratt)  maintained  and 
enforced  the  right  of  the  jury  to  punish  with 
exemplary  damages  the  agents  of  Lord  Hal- 
ifax (then  secretary  of  state)  for  the  illegal 
arrest  of  the  publishers  of  the  North  Briton, 
that  made  him  so  immensely  popular  in  Eng- 
land. Nearly  or  quite  twenty  of  those  cases 
appear  to  have  been  tried  before  him,  in  all 
of  which  enormous  damages  Avere  given,  and 
in  not  one  of  them  was  the  verdict  set  aside. 
In  one  of  the  cases  a  verdict  for  a  thousand 
pounds  was  returned  for  a  mere  nominal  im- 
prisonment at  the  house  of  the  officer  mak- 
ing the  arrest,  and  the  court  refused  to  set  it 
aside.  Beardmore  v.  Carrington,  2  Wils. 
244. 

"After  this,"  says  Lord  Campbell,  in  his 
Lives  of  the  Chancellors,  "he  became  the 
idol  of  the  nation.  Grim  representations  of 
him  laid  down  the  law  from  sign-posts,  many 
busts  and  prints  of  him  were  sold  not  only 
in  the  streets  of  the  metropolis,  but  in  the 
provincial  towms;  a  fine  portrait  of  him,  by 
Sir  Joshua  Reynolds,  with  the  flattering  in- 
scription, 'in  honor  of  the  zealous  asserter 
of  English  liberty  by  law,'  was  placed  in 
the  guildhall  of  the  city  of  London;  ad- 
dresses of  thanks  to  him  poured  in  from  all 
quarters;  and  one  of  the  sights  of  Loudon, 
which  foreigners  went  to  see,  was  the  great 
Lord  Chief  Justice  Pratt." 

In  this  country,  perhaps  Lord  Camden  is 
better  known  as  one  of  the  able  English 
statesmen  who  so  eloquently  defended  the 
American  colonies  against  the  unjust  claim 
of  the  mother  country  to  tax  them.  Lord  Camp- 
bell says  some  portions  of  his  speeches  upou 
that  subject  are  still  in  the  mouths  of  school- 
boys. But  in  England  his  immense  popularity 
originated  in  his  firm  and  vigorous  enforce- 
ment of  the  doctrine  of  exemplary  damages. 
And  we  cannot  discover  that  the  legality  of 
his  rulings  in  this  particular  was  ever  seri- 
ously called  in  question.  On  the  contrary, 
we  find  it  admitted  by  his  political  opponents 
that  he  was  a  profound  jurist  and  an  able  and 
upright  judge.  His  stringent  enforcement  of 
the  right  of  the  jury  to  punish  flagrant 
wrongs  with  exemplary  damages,  airested 
not  only  great  abuses  then  existing,  but  it 
has  had  a  salutary  influence  ever  since.  It 
won  for  him  the  title  of  the  "asserter  of 
English  liberty  by  law." 

In  this  country  the  right  of  the  jury  to 
give  exemplary  damages  has  been  much  dis- 
cussed. It  seems  to  have  been  first  opposed 
by   Mr.  Theron  Metcalf  (afterwards  reporter 


aud  judge  of  the  supreme  court  of  Massachu- 
setts), m  an  article  published  in  3  Am.  Jur. 
3S7,  in  1830.  The  substance  of  this  article 
was  afterwards  inserted  in  a  note  to  Mr. 
Greenleaf's  work  on  Evidence.  Mr.  Sedg- 
wick, In  his  work  on  Damages,  took  the  op- 
posite view,  and  sustained  his  position  by 
the  citation  of  numerous  authorities.  I'rofcss- 
or  Greenleaf  replied  in  an  article  in  9 
Bost.  Law  Rep.  521).  Mr.  Sedgwick  rejoined 
in  the  same  periodical  (volume  10,  p.  49). 
Essays  on  different  sides  of  the  question 
were  also  published  in  3  Am.  Law  Mag.  N. 
S.  537,  and  4  Am.  I^aw  jNIag.  N.  S.  Gl.  But 
notwithstanding  this  formidable  opposition, 
the  doctrine  triumphed,  and  must  be  regard- 
ed as  now  too  firmly  established  to  be  shaken 
by  anything  short  of  legislative  enactments. 
In  fact  the  decisions  of  the  courts  are  nearly 
unanimous  in  its  favor. 

In  a  case  in  the  supreme  court  of  the 
United  States,  Mr.  Justice  Grier,  in  delivering 
the  opinion  of  the  court,  says,  it  is  a  well- 
established  principle  of  the  common  law,  that 
in  all  action.'?  for  torts  the  jury  may  inflict 
what  are  called  punitive  or  exemplary  dam- 
ages, having  in  view  the  enormity  of  the 
offense  rather  than  the  measure  of  compensa- 
tion to  the  plaintiff.  "We  are  aware,"  the 
judge  continues,  "that  the  propriety  of  this 
doctrine  has  been  questioned  by  some  writers; 
but  if  repeated  judicial  decisions  for  more 
than  a  century  are  to  be  received  as  the 
best  exposition  of  what  the  law  is,  the  ques- 
tion will  not  admit  of  argument."  Day  v. 
Woodworth,  13  How.  303. 

In  a  case  in  North  Carolina,  the  court  refer 
to  the  note  in  Professor  Greenleaf's  work  on 
Evidence,  ana  say  that  it  is  very  clearly  w^rong 
with  respect  to  the  authorities;  and  in  their 
judgment  Avrong  on  principle;  that  it  is  fortu- 
nate that  while  juries  endeavor  to  give  ample 
compensation  for  the  injury  actually  received, 
they  are  also  allowed  such  full  discretion  as 
to  make  verdicts  to  deter  others  from  fla- 
grant violations  of  social  duty.  And  the 
same  court  hold  that  the  wealth  of  the  de- 
fendant is  a  proper  circumstance  to  be  weigh- 
ed by  the  jury,  because  a  thousand  dollars 
may  be  a  less  punishment  to  one  man  than 
a  hundred  dollars  to  another.  In  one  case 
the  same  court  sustained  a  verdict  which  in 
terms  assessed  the  actual  damages  at  iflOO, 
and  the  exemplaiy  damages  at  ?1,000.  The 
court  held  it  was  a  good  verdict  for  .$l,loO. 
Pep.dletou  v.  Davis,  1  Jones  (N.  C.)  98;  Mc- 
Aulay  V.  Birkhead,  13  Ired.  28;  Gilreath  v. 
Allen,  10  Ired.  07. 

In  fact,  Professor  Greenleaf  is  himself  an 
authority  for  the  doctrine  of  exemplary  dam- 
ages. Speaking  of  the  action  for  assault  and 
batteiy,  he  says  the  jury  are  not  confined  to 
the  mere  coii)oral  injury,  but  may  consider  the 
malice  of  the  defendant,  the  insulting  char- 
acter of  his  conduct,  the  rank  in  life  of  the 
several  parties,  and  all  the  circumstances  of 
the  outrage,  and  thereupon  award  such  ex- 
emplary damages  as  the  circumstances  may 


38 


COMPENSATORY  AND  EXEMPLAKY  DAMAGES. 


in  their  .iudginent  require.    2  Greeul.  Ev.  §  89. 

But  if  tlie  great  weight  of  Professor  Green- 
leaf's  authority  Avere  to  be  regarded  as  op- 
posed to  the  doctrine,  we  have,  on  tlie  other 
liand,  the  great  weight  of  Chancellor  Kent's 
opinion  in  favor  of  it.  He  says,  surely  this 
is  the  true  and  salutary  docti-ine.  And  after 
reviewing  the  English  cases,  he  continues  by 
saying  it  cannot  be  necessary  to  multiply  in- 
stances of  its  application;  that  it  is  too  well 
settled  in  practice,  and  too  valuable  in  prin- 
ciple to  be  called  in  question.  Tillotson  v. 
Cheetham,  3  Johns.  56,  G4. 

This  brief  review  of  the  doctrine  of  ex- 
emplary damages  is  not  so  much  for  the  pur- 
pose of  establishing  its  existence,  as  to  cor- 
rect the  erroneous  impression  which  some 
members  of  the  legal  profession  still  seem  to 
entertain,  that  it  is  a  modern  invention,  not 
sanctioned  by  the  rules  of  the  common  law. 
We  think  every  candid-minded  person  must 
admit  that  it  is  no  new  doctrine;  that  its  ex- 
istence as  a  fundamental  rule  of  the  common 
law  has  been  recognized  in  England  for  more 
than  a  century;  that  it  has  been  there  strin- 
gently enforced  under  circumstances  which 
would  not  have  allowed  it  to  pass  unchal- 
lenged, if  any  pretext  could  have  been  found 
for  doubting  its  validity;  and  that  in  this 
co^mtrJ^  notwithstanding  an  early  and  vig- 
orous opposition,  it  h;is  steadily  progressed, 
and  that  the  decisions  of  the  courts  are  now 
nearly  unanimous  in  its  favor.  It  was  sanc- 
tioned in  this  state,  after  a  careful  and  full 
review  of  the  authorities,  in  Pike  v.  Dilling, 
48  Me.  539,  and  cannot  now  be  regarded  as 
an  open  question. 

But  it  is  said  that  if  the  doctrine  of  ex- 
emplary damages  must  be  regarded  as  es- 
tablished in  suits  against  natural  persons 
for  their  own  willful  and  malicious  torts,  it 
ought  not  to  be  applied  to  corporations  for 
the  torts  of  their  servants,  especially  where 
the  tort  is  committed  by  a  servant  of  so  low 
a  grade  as  a  brakeman  on  a  railway  train, 
and  the  tortious  act  was  not  directly  nor  im- 
pliedly authorized  nor  ratified  by  the  corpora- 
tion; and  several  cases  are  cited  by  the  defend- 
ants' counsel,  in  which  the  courts  seem  to 
have  taken  this  view  of  the  law;  but  we 
have  carefully  examined  these  cases,  and  in 
none  of  them  was  there  any  evidence  that  the 
servant  acted  wantonly  or  maliciously;  they 
were  simply  cases  of  mistaken  duty;  and 
what  these  same  courts  would  have  done  if 
a  case  of  such  gross  and  outrageous  insult  had 
been  before  them,  as  is  now  before  us,  it  is 
impossible  to  say;  and  long  experience  has 
shown  that  nothing  is  more  dangerous  than 
to  rely  upon  the  abstract  reasoning  of  courts, 
when  the  cases  before  them  did  not  call  for 
the  application  of  the  doctrines  which  their 
reasoning  is  intended  to  establish. 

We  have  given  to  this  objection  much  con- 
sideration, as  it  was  our  duty  to  do,  for  the 
presiding  judge  declined  to  instruct  the  jury 
that  if  the  acts  and  words  of  the  defendants' 
seiTant  were  not  directly  nor  impliedly  au- 


thorized nor  ratified  by  the  defendant,  the 
plaintiff  could  not  recover  exemplary  dam- 
ages. We  confess  that  it  seems  to  us  that 
there  is  no  class  of  cases  where  the  doctrine 
of  exemplary  damages  can  be  more  benefi- 
cially applied  than  to  railroad  corporations 
in  their  capacity  of  common  carrieis  of  pas- 
sengers; and  it  might  as  well  not  be  applied 
to  them  at  all  as  to  limit  its  application  to 
cases  where  the  servant  is  directly  or  im- 
pliedly commanded  by  the  coi*poration  to 
maltreat  and  insult  a  passenger,  or  to  cases 
where  such  an  act  is  directly  or  implied- 
ly ratified;  for  no  such  cases  will  ever  oc- 
cur. A  corporation  is  an  imaginary  being. 
It  has  no  mind  but  the  mind  of  its  servants; 
it  has  no  voice  but  the  voice  of  its  servants; 
and  it  has  no  hands  with  which  to  act  but 
the  hands  of  its  servants.  All  its  schemes  of 
mischief,  as  well  as  its  schemes  of  public  en- 
terprise, are  conceived  by  human  minds  and 
executed  by  human  hands;  and  these  minds 
and  hands  are  its  sei'vants'  minds  and  hands. 
All  attempts,  tlierefore,  to  distinguish  be- 
tween the  guilt  of  the  servant  and  the  guilt 
of  the  corporation;  or  the  malice  of  the  serv- 
ant and  the  malice  of  the  coi-poration;  or  the 
punisliment  of  the  servant  and  the  punish- 
ment of  the  corporation,  is  sheer  nonsense; 
and  only  tends  to  confuse  the  mind  and  con- 
found the  judgment.  Neither  guilt,  malice, 
nor  suffering  is  predicable  of  this  ideal  ex- 
istence, called  a  eoiporation.  And  yet  under 
cover  of  its  name  and  authority,  there  is  in 
fact  as  much  wickedness,  and  as  much  that 
is  desening  of  punishment,  as  can  be  found 
anywhere  else.  And  since  these  ideal  exist- 
ences can  neither  be  himg,  imprisoned,  whip- 
ped, or  put  in  the  stocks, — since  in  fact  no 
corrective  influence  c-an  be  brought  to  bear 
upon  them  except  that  of  pecuniary  loss,— it 
does  seem  to  us  that  the  doctrine  of  exem- 
i  plary  damages  is  more  beneficial  in  its  ap- 
1  plication  to  them,  than  in  its  application  to 
I  natural  persons.  If  those  who  are  in  the 
habit  of  thinking  that  it  is  a  terrible  hard- 
ship to  punish  an  innocent  coiporation  for 
the  wickedness  of  its  agents  and  servants, 
will  for  a  moment  reflect  upon  the  absurdity 
of  their  own  thoughts,  tlieir  anxiety  will  be 
cured.  Careful  engineers  can  be  selected 
who  will  not  run  their  trains  into  open  draws; 
and  careful  baggage  men  can  be  secured, 
who  will  not  handle  and  smash  tiamks  and 
band-boxes  as  is  now  the  universal  custom; 
and  conductors  and  brakemen  can  be  had 
who  will  not  assault  and  insult  passengers; 
and  if  the  courts  will  only  let  the  verdicts 
of  upright  and  intelligent  juries  alone,  and 
let  the  doctrine  of  exemplary  damages  have 
its  legitimate  influence,  we  predict  these 
great  and  growing  evils  will  be  vei-y  much 
lessened,  if  not  entirely  cured.  There  is  but 
one  vulnerable  point  about  these  ideal  exist- 
ences, called  coiTJorations;  and  that  is,  the 
pocket  of  the  monied  power  that  is  concealed 
behind  them;  and  if  that  is  reached  they  will 
wince.    When    it    is   thoroughly    understood 


COMPENSATORY  AND  KXIOMPLAUY  DAMAGES. 


39 


that  it  is  not  proGtable  to  employ  careless 
and  iudifferent  agents,  or  reckless  and  inso- 
lent servants,  better  men  will  take  their  pla- 
ces, and  not  berore. 

It  is  our  judgment,  therefore,  that  actions 
against  coi-porations,  for  the  AA'illful  and  ma- 
licious acts  of  their  agents  aiid  seiTants  in 
executing  the  business  of  the  coiporation, 
should  not  form  exceptions  to  the  rule  allow- 
ing exemplary  damages.  On  the  contmiy, 
we  think  this  is  the  very  class  of  cases,  of 
all  others,  where  it  will  do  the  most  good, 
and  where  it  is  most  needed.  And  in  this 
conclusion  we  are  sustained  by  several  of  the 
ablest  courts  in  the  country. 

In  a  case  in  ^Mississippi,  the  plaintiff  was 
carried  four  hundi-ed  yards  beyond  the  sta- 
tion where  he  had  told  the  conductor  he 
wished  to  stop;  and  he  requested  the  con- 
ductor to  run  the  train  back,  but  the  conduct- 
or refused,  and  told  the  plaintiff  to  get  off 
the  train  or  he  would  caiTy  him  to  the  next 
station.  The  plaintiff  got  off  and  walked 
back,  cariying  his  valise  in  his  hand.  The 
plaintiff  testified  that  the  conductor's  manner 
toward  him  was  insolent,  and  the  defendants 
having  refused  to  discharge  him,  the  jury  re- 
turned a  verdict  for  four  thousand  five  hun- 
dred dollars,  and  the  court  refused  to  set  it 
aside.  They  said  the  x-ight  of  the  jury  to 
protect  the  public  by  punitive  oamages,  and 
thus  prevent  these  great  public  blessings 
from  being  converted  into  the  most  danger- 
ous nuisances,  was  conclusively  settled;  and 
they  hoped  the  verdict  would  have  a  salu- 
tary influence  upon  their  futiire  management. 
Railroad  Co.  v.  Hurst,  36  Miss.  GOO. 

In  New  Hampshire,  in  an  action  against 
this  identical  i-oad,  where,  through  gross 
carelessness,  there  was  a  collision  of  the 
passenger  train  with  a  freight  train,  and  the 
plaintiff  was  thereby  injured,  the  judge  at 
nisi  prius  instructed  the  jury  that  it  was  a 
proper  case  for  exemplary  damages;  and  the 
full  court  sustained  the  iiiling,  saying  it 
was  a  subject  in  which  all  the  traveling  pub- 
lic were  deeply  interested;  that  railroads  had 
practically  monopolized  the  transportation 
of  passengers  on  all  the  principal  lines  of 
travel,  and  there  ought  to  be  no  lax  adminis- 
tration of  the  law  in  such  cases;  and  that  it 
would  be  difficult  to  suggest  a  case  more  loud- 
ly calling  for  an  exemplaiy  verdict.  (If  mere 
carelessness,  however  gross,  calls  loudly  for 
an  exemplary  verdict,  what  shall  be  said  of 
an  injuiy  that  is  willful  and  grossly  insult- 
ing?)   Plopkins  V.  Railroad  Co.,  36  N.  H.  9. 

Judge  Redfield,  in  his  very  able  and  useful 
work  on  Railways,  expresses  the  opinion 
that  there  is  quite  as  much  necessity  for 
holding  these  companies  liable  to  exemplary 
damages  as  their  agents.  He  says  it  is  diffi- 
cult to  perceive  whj'  a  passenger,  who  suffers 
indignity  and  insult  from  the  conductor  of 
a  train,  should  be  compelled  to  show  an  ac- 
tual ratification  of  the  act,  in  order  to  sub- 
ject the  company  to  exemplaiy  damages.  2 
Redf.  R.  H.  231,  note.    But  if  such  a  ratifi- 


cation is  necessary,  he  thinks  the  corpora- 
tion, which  is  a  mere  legal  entity,  inappre 
ciable  to  sense,  should  be  regarded  as  always 
present  in  the  person  of  its  servant,  and  as 
directing  and  ratifying  the  servant's  acts 
within  the  scope  of  his  employment,  and  thus 
be  made  resiwnsible  for  his  willful  miscon- 
duct.    1  Redf.  R.  R.  51.5  et  seq. 

And  in  a  recent  case  in  Maryland  (piil)lish- 
ed  since  this  case  has  been  pending  before 
the  law  court),  a  case  in  all  respects  very 
similar  to  the  one  we  are  now  considering, 
the  presiding  judge  was  requested  to  instruct 
the  jury  that  the  plaintiff  was  not  entitled 
to  recover  vindictive  or  punitive  damages 
from  the  defendants,  unless  they  expressly 
or  impliedly  participated  in  the  tortious  act, 
authorizing  it  before  or  approving  it  after  it 
was  committed;  but  the  presiding  justice 
refused  so  to  instruct  the  jury,  and  the  full 
court  hold  that  the  retiuest  Avas  properly  re- 
jected; that  it  Avas  settled  that  Avhere  the 
injuiy  for  which  compensation  in  damages 
is  sought,  is  accompanied  by  force  or  malice, 
the  injured  party  is  entitled  to  recover  exem- 
plary damages.  Railroad  Co.  v.  Blocher,  27 
Md.  277. 

But  the  defendants  say  that  the  damages 
awarded  by  the  jury  are  excessive,  and  they 
move  to  have  the  verdict  set  aside  and  a 
noAV  trial  granted  for  that  reason.  That  the 
verdict  in  this  case  is  highly  punitive,  and 
Avas  so  designed  by  the  juiy,  cannot  be  doubt- 
ed; but  by  whose  judgment  is  it  to  be  meas- 
ured to  detemiine  Avhether  or  not  it  is  ex- 
cessive? What  standard  shall  be  used?  It 
is  a  case  of  wanton  insult  and  injury  to 
the  plaintiff's  character,  and  feelings  of  self- 
respect,  and  the  damages  can  be  measured 
by  no  property  standard.  It  is  a  case  Avhere 
the  judgment  will  be  very  much  influenced 
by  the  estimation  in  which  character,  self- 
respect,  and  freedom  from  insult  are  held. 
To  those  Avho  set  a  veiy  low  value  on  char- 
acter, and  think  that  pride  and  self-respect 
exist  only  to  become  objects  of  ridicule  and 
sport,  the  damages  will  undoubtedly  be  con- 
sidei'ed  excessive.  It  would  not  be  strange 
if  some  such  persons,  measiu-ing  the  sensibil- 
ities of  others  by  their  own  low  standard, 
should  view  this  verdict  with  envy,  and  re- 
gret that  somebody  will  not  assault  and  in- 
sult them,  if  such  is  to  be  the  standard  of 
compensation.  Wliile  others,  who  feel  that 
character  and  self-respect  are  above  all  price, 
more  valuable  than  life  itself  even,  will  re- 
gard the  verdict  as  none  too  large.  "We  re- 
peat, therefore,  that  it  is  a  case  Avhere  men's 
judgments  will  be  likely  to  differ.  And  sup- 
pose the  court  is  of  opinion  that  the  dam- 
ages in  this  case  are  greater,  much  greater 
even,  than  they  would  have  awarded,  does 
it  therefore  follow  that  the  judgment  of  the 
court  is  to  be  substituted  for  that  of  the 
jury?  By  no  means.  It  is  the  wisdom  of  the 
law  to  suppose  that  the  judgment  of  the  jury 
is  more  likely  to  be  right  than  the  judgment 
of  the  court,  for  it  is  to  the  former  and  not 


40 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


to  the  latter  that  the  duty  of  estimating  dam- 
ages is  confided.  Unless  the  damages  are  so 
large  as  to  satisfy  the  court  that  the  verdict 
was  not  the  result  of  an  honest  exercise  of 
judgment,  they  have  no  right  to  set  it  aside. 

A  careful  examination  of  the  case  fails  to 
satisfy  us  that  the  jm'y  acted  dishonestly,  or 
that  thej^  made  any  mistake  in  their  appli- 
cation of  the  doctrine  of  exemplary  dama- 
ges. We  have  no  doubt  that  the  highly  puni- 
tive character  of  their  verdict  is  owing  to 
the  fact  that,  after  Jackson's  misconduct  was 
known  to  the  defendants,  they  still  retained 
him  in  their  service.  The  jury  undoubtedly 
felt  that  it  was  due  to  the  plaintiff,  aud  due 
to  every  other  traveller  upon  that  road,  to 
have  him  instantly  discharged;  and  that  to 
retain  him  in  his  place,  aud  thus  shield  and 
protect  him  agaiust  the  protestation  of  the 
plaintiff,  made  to  the  servant  himself  at  the 
time  of  the  assault,  that  he  would  lose  his 
place,  was  a  practical  ratification  and  ap- 
proval of  the  servant's  conduct,  and  would 
be  so  understood  by  him  and  by  every  other 
servant  on  the  road. 

And  when  we  consider  the  violent,  long- 
continued,  and  grossly  insulting  character  of 
the  assault;  that  it  was  made  upon  a  per- 
son in  feeble  health,  and  was  accompauied 
by  language  so  coarse,  profane,  and  brutal; 
tliat  so  far  as  appears  it  was  wholly  unpro- 
voked; we  confess  we  are  amazed  at  the  con- 
duct of  the  defendants  in  not  instantly  dis- 
charging Jackson.  Thus  to  shield  and  pro- 
tect him  in  his  insolence,  deeply  implicated 
them  in  his  guilt.  It  was  such  indifference 
to  the  treatment  the  iilaiutift"  had  received, 
such  indiff'erence  to  the  treatment  that  other 
travelers  might  receive,  such  indiff'erence  to 
the  evil  influence  which  such  an  example 
would  have  upon  the  servants  of  this  and 
other  lines  of  public  travel,  that  Ave  are  not 
prepared  to  say  the  jury  acted  unwisely  in 
making  their  verdict  highly  punitive.  We 
cannot  help  feeling  that  if  we  shordd  inter- 
fei'e  and  set  it  aside,  our  action  would  be 
most  unfortunate  and  detrimental  to  the  pub- 
lic interests.  On  the  contrary,  if  we  allow  it 
to  stand,  we  cannot  doubt  that  its  influence 
will  be  salutary.  It  will  be  an  impressive 
lesson  to  these  defendants,  and  to  the  man- 
agers of  other  lines  of  public  travel,  of  the 
risk  they  incur  when  they  retain  in  their 
sei-vice  servants  known  to  be  reckless,  ill- 
mannered,  and  unlit  for  their  places.  And  it 
will  encourage  those  who  may  suffer  insidt 
aud  violence  at  the  hands  of  such  servants, 
not  to  retaliate  or  attempt  to  become  their 
own  avengers,  as  is  too  ofteu  done,  but  to 
trust  to  the  laAv  and  to  the  courts  of  jus- 
tice, for  the  redress  of  their  grievances.  It 
will  say  to  them,  be  patient  and  law-abid- 
ing, and  your  redress  shall  surely  come,  and 
in  such  measure  as  will  not  add  insult  to 
j-our  previous  injury. 

On  the  whole,  Ave  cannot  doubt  that  it  is 
best  for  all  concerned  that  this  verdict  be 
alloAved  to  stand. 


We  see  nothing  in  the  rulings  or  charge  of 
the  presiding  judge,  of  Avhich  the  defendants 
can  justly  complain.  And  there  is  nothing 
to  satisfy  us  that  the  jury  Avere  prejudiced 
or  unduly  biased;  or  that  they  made  any 
mistake  either  as  to  the  facts  or  the  law. 
Oiu-  conclusion,  therefore,  is,  that  the  excep- 
tions and  motion  must  be  overruled. 

Motion  and  exceptions  overruled. 

APPLETON,  0.  J.,  and  DICKERSON, 
BARROWS,  and  DANPORTH,  J  J.,  concurred. 

TAPLEY,  J.,  did  not  concur  upon  the  ques- 
tion of  damages,  and  gave  his  opinion  as  fol- 
io avs: 

In  so  much  of  the  opinion  of  Mr.  Justice 
WALTON  as  determines  tlie  question  of  the 
liability  of  the  defendants  to  answer  in  dam- 
ages for  the  acts  of  the  brakeman  Jackson  I 
concur;  but  I  do  not  concur  in  sustaiuiug  the 
rulings  of  the  court  at  the  trial  of  the  cause 
fixing  the  rule  of  damage  for  the  jury;  aud  1 
regard  it  so  clearly  Avrong  in  principle,  in- 
equitable aud  unjust  in  practice,  and  so  en- 
tirely Avanting  in  precedent,  that  my  duty  re- 
quires something  more  than  a  silent  dissent. 

So  much  of  the  opinion  as  discusses  the 
right  of  a  jury  to  give  in  civil  actions  puni- 
tive damages,  I  do  not  propose  uoav  to  re- 
vieAv  or  express  any  opinion  of  or  concerning, 
but  it  is  to  the  application  of  the  rule  made 
in  this  case  by  the  justice  presiding  at  the 
trial  of  the  cause.  The  rulings  upon  this 
matter  are  happily  so  clearly  expressed  and 
positive  in  terms,  that  no  reasonable  doubt 
concerning  the  proposition  iuA^olved  in  them 
can  be  entertained.  If  by  possibility  any 
doubt  could  have  arisen  couceruing  them,  the 
opiuion  he  has  draAvn  in  the  case  sets  them 
at  rest. 

The  case  shows  that  "on  the  subject  of 
damages  the  presiding  justice  iustructed  the 
jury  as  follows:  If  the  plaintiff  has  proved 
his  case  so  that  he  is  entitled  to  recover 
some  damages,  the  question  arises  how  much. 
That  is  a  question  which  you  must  deter- 
miue,  being  guided  by  the  rules  of  laAv  as  I 
shall  state  them  to  you.  In  the  first  place, 
the  plaintiff  is  entitled  to  such  damages  as 
he  has  actually  suffered,  and  in  estimating 
the  amount,  you  will  not  be  limited  to  Avhat 
he  has  lost  in  dollars  and  cents.  In  fact, 
thei'e  is  no  evidence  that  he  has  suffered  pe- 
cuniarily to  any  extent.  Y'ou  are  to  consider 
the  injiu'y  to  his  feelings,  his  wounded  pride, 
his  wounded  self-respect,  his  mental  pain 
and  suffering,  occasioned  by  the  assault,  and 
the  feeling  of  degradation  that  necessarily 
resulted  from  it.  There  are  foAV  men  proba- 
bly that  would  not  rather  suffer  a  severe 
pecuniarj'  loss  than  a  personal  and  insulting 
assault.  Hence  if  one  man  should  spit  in 
another's  face  in  public,  the  jury  would  not 
be  limited  to  ten  cents  damages  on  the 
ground  that  that  sum  would  pay  him  for 
AA'ashing  his  face.  A  man's  feelings,  self-re- 
spect, and  pride  of  character  are  as  much  un- 


COMPKXSATORY  AXD  KX  KM  IM.A  KV    DAM  A(;KS. 


41 


<lfi-  the  protection  of  the  law  in  sueli  case  as 
his  property.  Aud  in  estimating  the  dam- 
ages  for  a  personal  assault  attended  with 
opprobrious  and  insulting  language,  the  jury 
have  a  right  to  consider  the  character  and 
standing  of  the  person  assaulted,  and  the  in- 
jury to  his  feelings,  as  well  as  the  injury  to 
his  person,  and  then  to  give  him  such  dam- 
ages as,  in  view  of  all  the  circumstances, 
>vill  be  a  just  compensation  for  the  injury 
actually  suffered.  This  amount  must  be  left, 
in  every  case,  to  the  sound  judgment  and 
discretion  of  the  juiy." 

Pausing  at  this  point  of  the  instructions, 
we  shall  notice  that  they  embrace  all  the  el- 
ements of  compensatory  damages  recognized 
by  courts  of  the  most  liberal  views  in  these 
matters;  aud  embrace  elements  which  many 
courts  denominate  exemplary;  and  they  are 
stated  in  so  clear  and  concise  a  manner,  and 
accompanied  by  so  forcible  an  illustration, 
that  had  they  stopped  at  this  point  the  plain- 
tiff might  well  have  expected  his  verdict  to 
cover  the  utmost  his  injuries  would  war- 
rant. With  the  rule  thus  far  I  am  content, 
although  carrying  it  to  the  very  verge  and 
utmost  limit  of  precedent.  I  call  attention 
to  it  at  this  point  to  show  that  the  jury  had, 
at  this  time,  instructions  wliich  covered  all 
the  tangible  aud  intangible  elements  of  as- 
sessment in  such  cases.  Instructions  which 
if  adhered  to  and  followed  by  the  jury  re- 
store him  to  the  condition  in  which  the  as- 
saulting party  found  him,  so  far  as  money 
can  do  it.  Under  these  instmctions  he  is  to 
be  made  whole  in  the  eyes  of  the  law,  just 
as  if  the  injury  had  not  been  done;  in  every 
particular  compens-ated  so  far  as  money  can 
do  it;  what  is  done  beyond  is  not  to  com- 
pensate, it  is  not  to  meet  mere  speculative  or 
intangible  injuries,  is  not  to  give  him  any- 
thing due  him.  for  he  has  his  full  desert. 
These  elements  reach  everything  he,  as  an 
individual,  can  claim  by  reason  of  any  in- 
fringement of  his  rights. 

These  instructions  having  been  given,  so 
full,  clear,  and  Mberal,  the  presiding  judge 
proceeds  to  give  the  next  element  of  damage, 
which  has  not  for  its  basis  any  injiu-y,  inva- 
sion of  right  or  privilege,  discomfort,  incon- 
venience, or  indeed  anything  relating  to  the 
plaintilf,  or  anything  in  which  he  has  any  in- 
terest above  that  possessed  by  every  other 
member  of  the  community.  It  is  not  act  or 
deed,  word  or  menace,— these  have  all  been 
adjusted;  but  it  is  mere  motive,  thought,  in- 
terest, and  secret  desire.  Being  evil,  mor- 
ally wrong,  somebody  must  be  punished  for 
their  existence,  and  the  judge  says: 

"There  is  also  another  important  rule  of 
law  bearing  upon  the  question  of  damages. 
If  the  injury  was  wanton,  malicious,  com- 
mitted in  reckless  and  willful  disregard  of 
rhe  rights  of  the  injured  party,  the  law  al- 
lows the  juiT  to  give  what  is  called  punitoi-y 
or  exemplary  damages.  It  blends  the  inter- 
ests of  the  injured  party  with  those  of  the 
public,  and  permits  the  jury  not  only  to  give 


damages  sufficient  to  compensate  the  plain- 
tiff, but  also  to  punish  the  defendants.  I 
feel  it  my  duty,  however,  to  say,  that  you 
ought  to  be  vei-y  cautious  in  the  application 
of  this  rule.  The  law  does  not  re'iiuire  you 
to  give  exemplary  damages  in  any  case,  and 
where  the  damages  which  the  plaintiff  is  en- 
titled to  recover  in  order  to  compensate  him 
for  the  injury  he  has  actually  suffered  is 
sulticient  to  punish  the  defendants,  and  serve 
as  a  warning  and  example  to  others,  the  jury 
ought  not  to  give  more.  But  if  they  think 
it  is  not  enough,  then  the  law  allows  thorn 
to  add  such  further  sum  as  will  mtrke  it 
enough  for  that  purpose.  But  they  should 
be  careful  in  fixing  the  amount  not  to  allow 
more  than  is  just  aud  reasonal)le,  and  not 
to  allow  their  judgment  to  be  swerved  by 
their  passions.  Defendants'  counsel  re<iuest- 
ed  the  presiding  judge  to  instruct  the  jui-j', 
that  the  plaintiff  is  not  entitled  to  recover 
against  the  defendant  company,  any  greater 
damages  than  he  might  against  .lackson 
himself,  for  the  same  cause  of  action  upon 
similar  evidence.  Upon  which  request  the 
presiding  judge  stated  to  the  jury:  I  de- 
cline to  give  you  such  instruction.  I  have 
endeavored  to  give  you  the  correct  rules  by 
wliich  the  damages,  if  any,  are  to  be  as- 
sessed in  this  case;  and  I  think  you  cannot 
rightfully  be  required  to  enter  into  a  con- 
sideration of  the  damages  which  a  party  not 
now  before  the  court,  and  has  not  therefore 
had  an  opportunity  to  be  heard,  ought  to 
pay,  and  then  measure  the  damages  in  this 
case  which  lias  been  beard,  by  those  which 
you  think  ought  to  be  just  in  another  which 
has  not  been  heai-d;  we  will  endeavor  to  de- 
cide this  case  right  now,  aud  when  Jackson's 
case  comes  before  us,  if  it  ever  does,  we  will 
endeavor  to  decide  that  I'ight. 

"Defendants'  counsel  further  requested  the 
presiding  judge  to  instruct  the  jury,  that  if 
the  jury  find  that  the  acts  aud  words  of 
Jackson  were  not  directly  nor  impliedly  a\\- 
thorized,  nor  ratifled  by  the  defendants,  then 
the  plaintiff  is  not  in  any  event  entitled  to 
recover  vindictive  damages  against  the  de- 
fendants, nor  damages  in  the  nature  of 
smart-money,  which  request  was  not  com- 
plied with,  the  presiding  judge  having  al- 
ready instructed  the  jury  upon  what  state 
of  facts  the  plaintiff  would  be  entitled  to 
such  damages." 

I  have  copied  all  the  instructions  "on  the 
subject  of  damages."  It  will  be  seen  that 
these  latter  instructions  are  substantially 
that  the  jury  having  given  full  compensa- 
tory damages,  may  give  others  in  their  dis- 
cretion to  punish  these  defendants  for  the 
wanton,  willful,  and  malicious  act  of  their 
brakoman  in  assaulting  a  passenger,  al- 
though they  neither  directly  nor  impliedly  au- 
thorized or  ratified  the  act. 

This  proposition  must  be  sustained,  if  at 
all,  upon  one  of  two  grounds;  either  that  it 
is  competent  to  punish  one  man  for  the  crim- 
inal intent  of  another,  or  that  the  malice  of 


42 


COMPENSATUilY  AND  EXE.Mi'LAllY  DAMACiES. 


the  brakeman  in  this  case  was  that  of  the  de- 
fendant corporation. 

A  brief  notice  of  some  of  the  authorities 
touching  the  liability  of  the  master  for  the 
acts  of  his  servant  will,  I  think,  show  the 
ground  of  liability,  the  reason  for  the  rule, 
and  exhibit  a  marked  distinction  between  the 
ordinary  case  of  master  and  servant  and  the 
case  at  bar. 

In  2  Dane,  Abr.  c.  59,  art.  2,  it  is  said: 
"Tlie  master  is  not  liable  for  the  willful, 
voluntary,  or  furious  act  of  his  servant." 
"If  my  servant  distrain  a  horse  lawfully  by 
my  order,  and  then  use  him,  this  conversion 
is  his  act,  and  trover  lies  against  him;  for 
my  order  extends  only  to  distraining  the 
horse,  and  not  to  using  him;  this  is  his  own 
act." 

"Nor  is  the  master  bound  for  the  volun- 
tary acts  of  his  servants;  for  if  he  be  bound, 
servants  may  ruin  their  masters  by  willful 
acts;  nor  are  willful  acts,  wrongs  author- 
ized by  their  masters." 

"If  I  order  my  servant  to  do  what  is  law- 
ful, and  he  does  more,  he  only  is  liable;  it 
is  his  own  act,  otherwise  he  might  ruin  me, 
and  in  such  case  there  can  be  no  express  or 
implied  command  from  me  for  what  he  does 
beyond  his  orders;  and  whenever  the  ques- 
tion is  how  far  the  master  is  liable  for  his 
servant's  acts,  the  material  inquiry  must  be, 
how  far  he  expressly  or  impliedly  author- 
ized it." 

"The  master  is  liable  for  the  negligent  act 
of  his  servant,  but  not  for  his  willful  wrong; 
is  liable  in  trover;  for  which  rule  several 
reasons  may  be  given:  (1)  A  willful  wrong 
is  the  servant's  own  act.  (2)  To  allow  him 
by  his  Avillful  tortious  act  to  bind  his  master 
and  subject  him  to  damages,  would  be  to  al- 
low servants  a  power  to  ruin  their  masters. 
(3)  In  such  cases  there  is  no  command  from 
the  master  expressed  or  implied  to  do  a  will- 
ful Avrong." 

In  4  Bac.  Abr.  tit.  "Master  and  Servant," 
it  is  said:  "The  master  must  also  answer 
for  torts,  and  injuries  done  by  his  servant 
in  the  execution  of  his  authority.  But 
though  a  master  is  answerable  for  damages 
occasioned  by  the  negligence  or  unskillful- 
ness  of  his  servant  acting  in  the  execution  of 
his  orders,  yet  he  is  not  answerable  in  tres- 
pass for  the  willful  act  of  his  servant  done 
in  Ills  absence,  and  without  his  direction  or 
assent." 

Chancellor  Kent  says:  "The  master  is  on- 
ly answerable  for  the  fraud  of  his  servant 
while  he  is  acting  in  his  business,  and  not 
for  fraudulent  or  tortious  acts,  or  misconduct 
in  those  things  which  do  not  concern  his  duty 
to  his  master,  and  Avhich  when  he  commits, 
he  steps  out  of  the  course  of  his  service. 
But  it  was  considered  in  McManus  v. 
Cricket,  1  East,  106,  to  be  a  question  of  great 
concern  and  of  much  doubt  and  uncertainty, 
whether  the  master  was  answerable  in  dam- 
ages for  an  injury  willfully  committed  by 
his  servant  while  in  the  performance  of  his 


master's  business,  without  the  direction  or 
assent  of  the  master.  The  court  of  K.  B. 
went  into  an  examination  of  all  the  authori- 
ties, and  after  much  discussion  and  great 
consideration,  with  a  view  to  put  the  ques- 
tion at  rest,  it  was  decided  that  the  master 
was  not  liable  in  trespass  for  the  willful  act 
of  his  servant  in  driving  his  master's  car- 
riage against  another,  without  his  master's 
direction  or  assent.  The  court  considered 
that  Avhen  the  servant  quitted  sight  of  the 
object  for  which  he  was  employed,  and  with- 
out having  in  view  his  master's  orders,  pur- 
sued the  object  which  his  own  malice  sug- 
gested, he  no  longer  acted  in  pursuance  of 
the  authority  given  him,  and  it  was  deemtMl 
so  far  a  willful  abandonment  of  his  master's 
business.  This  case  has  received  the  sanc- 
tion of  the  supreme  court  of  Massachusetts 
and  New  York,  on  the  ground  that  there  was 
no  authority  from  the  master  express  or  im- 
plied, and  the  servant  in  that  act  was  not  in 
the  employment  of  his  master." 

In  Wright  v.  Wilcox,  19  Wend.  343,  CoAven, 
J.,  who  gave  the  opinion  of  the  court,  says: 
"If  the  act  was  willful,  the  master  is  no  more 
liable  than  if  his  servant  had  committed  any 
other  assault  and  battery.  All  the  cases 
agree  that  a  man  is  not  liable  for  the  willful 
mischief  of  his  servant,  though  he  be  at  the 
time  in  other  respects  engaged  .in  the  service 
of  the  former."  After  citing  several  cases 
he  adds:  "Why  is  a  master  chargeable  for 
the  act  of  his  servant?  Because  what  a  man 
does  by  another  he  does  by  himself.  The  act 
is  not  within  the  scope  of  his  agency."  He 
says:  "The  authorities  deny  that  when  the 
servant  AvillfuUy  drives  over  the  man,  he  is 
in  his  master's  business.  They  held  it  a  de- 
parture, and  going  into  the  servant's  own  in- 
dependent business." 

In  Turnpike  Co.  v.  Vanderbilt,  1  Hill,  48i», 
case  of  a  collision  of  steamboats,  the  su- 
preme court  held  that  if  the  collision  was 
willful  on  the  part  of  the  defendant's  serv- 
ant, the  defendant  was  not  liable,  referring 
to  Wright  V.  Wilcox.  The  case  afterward 
went  to  the  court  of  appeals  (2  Com.  479> 
where  the  doctrine  applied  in  the  supreme 
court  was  sanctioned;  and  it  was  further 
held  that  the  coiiioration  was  not  liable,  al- 
though the  willful  act  producing  the  injury 
Avas  authorized  and  sanctioned  by  the  presi- 
dent and  general  agent  thereof;  because  a 
general  or  special  agent,  when  he  commits  or 
orders  a  willful  trespass  to  be  committed, 
acts  without  the  scope  of  his  authority. 

In  Ilibbard  v.  Railroad  Co.,  1.5  N.  Y.  455, 
which  was  "an  action  against  the  coiTpora- 
tion  for  ejecting  a  passenger  from  the  cars, 
who,  having  once  exhibited  his  ticket,  re- 
fused so  to  do  when  again  requested  by  the 
conductor,"  Brown,  J.,  in  giving  his  opinion 
says,  speaking  of  a  requested  instruction 
concerning  damages,  "the  object  of  the  re- 
quest was,  that  the  court  should  discriminate 
between  those  acts  of  the  company's  agent 
done  in  the  execution  of  its  directions,  and' 


COMPENSATORY  AND  EXEMPLAUY  DAMAGES. 


43 


those  done  in  the  excess  of  its  instructions 
and  without  authority  or  approbation.     This 
I  thinli  should  have  been  done.     The  plaintiff 
may  have  been  injured  by  the  use  of  unnec- 
essary force  to  effect  what  the  company  had  i 
a  right  to  do.     The  conductor  and  those  who 
aided  him  are  not  tlie  company.     They  are 
its  agents  and  servants,  and,  whatever  tor-  | 
tious  acts  they  commit  by  its  direction,  it  is  i 
responsible  for  and  no  other.     This  is  upon  j 
the  principle  that  what  one  does  by  another  j 
he  does  by  himself.     For  injuries  resulting 
from  the  carelessness  of  the  servant  in  the 
performance  of  his  master's  business  the  lat- 
ter is  liable.     But  for  the  willful  acts  of  the 
servant  the   master   is   not  responsible,   be- 
cause such  willful  acts  are  a  departure  from 
the  master's  business;"    and  cites  the  case  of 
Wright  V.  AYilcox,  and  cases  there  cited. 

In  the  same  case  Comstock,  J.,  says:  "If 
the  conductor  had  no  right  to  eject  the  plain- 
tiff from  the  ti-ain  after  he  had  complied  with 
the  request  and  produced  the  ticket,  then  I 
do  not  see  upon  what  principle  the  defendants 
can  be  made  liable  for  the  wrong.  The  reg- 
ulation and  instructions  to  the  conductor,  as 
we  have  said,  were  lawful,  and  they  did  not 
in  their  terms  or  construction  profess  to  jus- 
tify the  trespass  and  eviction.  The  result  is, 
the  v>-rong  was  done  without  any  authority, 
and,  therefore,  that  those  who  actually  did  it 
are  alone  unanswerable."  "If  he  mistook  the 
authority  conferred  upon  him  both  when  he 
committed  the  trespass  and  when  he  was  ex- 
amined as  a  witness,  it  cannot  alter  the  law 
or  change  the  rights  of  the  parties.  His  own 
mistake  as  to  the  extent  of  his  powers  cannot 
make  the  railroad  company  liable  for  acts  not 
in  fact  authorized."  These  cases  are  all  cited 
in  a  subsequent  case.  Weed  v.  Railroad  Co., 
17  N.  Y.  362. 

The  rule  is  thus  stated  in  Story,  Ag.  §  456: 
"But  although  the  principal  is  liable  for  the 
torts  and  negligence  of  his  agents,  yet  we  are 
to  understand  the  doctrine  with  its  just  limi- 
tations, that  the  tort  or  negligence  occurs  in 
the  course  of  the  agency.  For  the  principal 
is  not  liable  for  the  torts  or  negligences  of 
his  agent  in  matters  beyond  the  scope  of  the 
agency  unless  he  has  subsequently  adopted 
them  for  his  use  or  benefit.  Hence  it  is  that 
the  principal  is  never  liable  for  the  unauthor- 
ized, the  willful,  or  the  malicious  act  or  tres- 
pass of  his  agent." 

Mr.  Hilliard,  in  his  work  on  Torts,  says: 
"In  general,  a  master  is  liable  for  the  fault 
or  negligence  of  his  servant;  but  not  for  his 
willful  wrong  or  trespass.  The  injury  must 
arise  in  the  course  of  the  execution  of  some 
service  lawful  in  itself,  but  negligently  or  un- 
skillfully  performed,  and  not  be  a  wanton  vio- 
lation of  law  by  the  servant,  although  occu- 
pied about  the  business  of  his  employer."  Hil. 
Torts,  c.  40. 

In  Pai-sons  v.  Winchell,  5  Cush.  .592,  Met- 
calf,  J.,  says:  "But  the  act  of  a  servant  is 
not  the  act  of  a  master  even  in  legal  intend- 
ment or  effect  unless  the  master  personally  di- 


rects or  subsequently  adopts  it.  In  other  cas- 
es, he  is  liable  for  the  acts  of  his  servant 
when  liable  at  all,  not  as  if  the  act  were  done 
by  himself,  but  because  the  law  makes  him 
answerable  therefor.  He  is  liable,  says  Lord 
Kenyon,  'to  make  compensation  for  the  dam- 
age consequential  for  his  employing  of  an  un- 
skillful or  negligent  servant.'  "    1  East,  108. 

Of  this  latter  class  of  cases.  Story  says: 
"In  every  such  case  the  principal  holds  out 
his  agent  as  competent  and  fit  to  be  trusted; 
and  thereby,  in  effect,  he  wariants  his  fidelity 
and  good  conduct  in  aU  the  matters  of  the 
agency."    Story,  Ag.  §  452. 

In  Southwick  v.  Estes,  7  Cush.  385,  Dewey, 
J.,  instructed  the  jury  "that  if  the  act  of  the 
servant  were  not  done  negligently  but  willful- 
ly with  the  intention  of  disregarding  the  di- 
rections of  the  master,  he  would  not  be  re- 
sponsible therefor."  This  instruction  was  held 
correct,  and  the  case  of  McManus  v.  Crickett 
was  cited  by  the  court. 

In  Railroad  Co.  v.  Langley,  21  How.  202, 
Mr.  Justice  Campbell  in  delivering  the  opin- 
ion of  the  court  says,  "the  result  of  the  cases 
is  that  for  acts  done  by  the  agents  of  a  corpo- 
i-ation  either  in  contractu  or  in  delicto  in  the 
course  of  its  business  and  of  their  employ- 
ment, the  corporation  is  responsible  as  an  in- 
dividual is  responsible  under  similar  circum- 
stances." 

In  Weed  v.  Railroad  Co.,  17  N.  Y.  302,  this 
rule  was   invoked   to   relieve  the  defendants 
from  the  consequences  of  the  willful  act  of  the 
conductor  in  the  detention  of  a  train  whereby  a 
passenger  was  made  sick  and  suffered  perma- 
nent injury  in  her  health.    Strong,  J.,  in  deliv- 
ering the  opinion  of  the  court  says:  "The  de- 
fendants insist  that  they  are  not  liable  for  the 
willful  act  of  the  conductor  followed  by  such 
a  result;  and  they  invoke,  in  support  of  their 
position,  the  rule,  well  sustained  by  principle 
and  authority,  that  a  master  is  not  liable  for 
a  willful  trespass  of  his  sei-vant."    He  then 
proceeds  to  say:    "It  is  important,  therefore, 
to  inquire  whether  that  rule  extends  to  a  case 
like  the  present,  and  for  that  purpose  to  con- 
sider the  basis  on  which  it  is  founded.    The 
reason  of  the  rule  clearly  appears  by  the  cas- 
es in  which  it  has  been  declared  and  applied." 
He  then  examines  many  of  the  cases  where 
the  rule  has  been  stated  and  applied,  and  cites 
also   Stoiy,   Ag.   §  456,  and  then   says:    "All 
the  cases  on  the  subject,  so  far  as  I  have  ob- 
served, agree  in  regard  to  the  principle  of  the 
rule,  and  also  in  limiting  the  rule  to  that  prin- 
ciple.   For  acts  of  an  agent  within  his  au- 
thority,   the  principal   is   liable,    but   not   for 
willful  acts  without  his  authority."    Railroad 
Co.  V.  Derby,  14  How.  408.    He  then  proceeds, 
in  reference  to  the  case  then  under  considera- 
tion; to  say:    "In  the  hght  of  this  examina- 
tion of  the  class  of  cases  which  has  been  con- 
sidered, it  cannot  fail  to  be  seen  that  there 
is  an  important  difference  between  those  cas- 
es and  the  one  before  the  court.    The  former 
are   cases  of   willful,   unauthorized,   wrongful 
acts   by  agents,  unapproved  by  their  princi- 


COMPENSATORY  AND  EXEMPLAKY  DAMAGES. 


pals,  occasioning  damage,  but  which  do  not 
involve  nor  work  any  omission  or  violation 
of  duty  by  their  principals  to  the  persons  in- 
jured; wrongs  by  the  agents  only  with  which 
the  principals  are  not  legally  connected.  In 
the  present  case,  by  means  of  the  wrongful, 
willful  detention  by  the  conductor,  the  obli- 
gation assumed  by  the  defendants,  to  carry 
the  Avife  with  proper  speed  to  her  destination, 
was  broken.  The  real  wrong  to  the  wife  in 
this  case,  and  from  which  the  damage  pro- 
ceeded, was  the  not  carrying  her  in  a  reason- 
able time  to  Aspinwall  as  the  defendants  had 
undertaken  to  do,  and  this  was  a  wrong  of 
the  defendants  unless  the  law  excused  them 
for  their  delay  on  account  of  the  misconduct 
of  their  agent."  In  the  conclusion  of  his  dis- 
cussion he  says,  the  rule  of  law,  relied  on  by 
the  defendants  to  sustain  their  position,  is  in- 
applicable to  the  case,  and  that  it  makes  no 
difference  whether  the  act  was  willful  or  neg- 
ligent as  to  the  liability  of  the  defendants  for 
a  nonfulfillment  of  their  contract.  From  an 
examination  of  these  authorities,  I  think  it 
will  be  found  that  the  principal  is  liable  for 
the  act  of  his  agent  in  three  classes  of  cases: 

I.  Where  the  act  is  done  by  the  previous 
command  of  the  principal,  or  is  subsequently 
ratified  or  adopted  by  him. 

This  command  may  appear  from  proof  of 
specific  directions,  or  implied  from  the  circum- 
stances of  the  case. 

II.  Where  the  agent  negligently,  unskillful- 
ly  or  otherwise  improperly  performs  the  du- 
ties pertaining  to  his  employment. 

III.  Where  the  act  of  the  agent  has  caused 
the  breach  of  a  contract,  or  prevented  the  per- 
formance of  an  obligation  due  from,  and  ex- 
isting between,  the  principal  and  a  third  per- 
son. 

The  liabilitv.  in  the  first  class  of  cases,  rests 
solely  upon  the  maxim,  "Qui  facit  per  alium 
facit  per  se;"  and  in  no  other  cases  is  he  liable 
as  an  actor,  but  in  those  cases  where  he  has 
conr.uauded  the  act  or  subsequently  ratified  it, 
AA-hich  is  regarded  in  law  as  a  previous  com- 
mand. 

The  authorities,  ancient  and  modern,  are  be- 
lieved to  be  vmiform  ui)un  this  proposition,  and 
wherever  a  liability  attaches  for  an  imauthor- 
ized  act,  it  is  founded  upon  some  other  rea- 
son. 

In  the  second  class  the  agent  is  held  out  as 
competent  and  fit  to  be  trusted  (by  the  prin- 
cipal), and  he,  in  effect,  warrants  his  fidelity 
and  good  conduct  in  all  the  matters  of  the 
agency;  by  reason  of  this,  as  Lord  Kenyon 
says,  he  becomes  liable  "to  make  compensa- 
tion for  the  damage  consequential  for  his  em- 
ploying of  an  unskillful  or  negligent  sei-vant." 
As  to  whether  this  warranty  covers  the  willful 
tortious  acts  of  the  agent  while  engaged  in  and 
about  the  master's  business,  the  authorities  do 
not  all  agree.  Some  hold  that  as  soon  as  the 
act  becomes  a  willful  trespass,  the  master  is 
no  longer  liable;  others  hold  that  for  acts  done 
in  the  course  of  his  employment  the  master 
is  responsible  whatever  may  be  the  animus  of 


the  actor.  A  review  of  the  authorities,  touch- 
ing this  question,  will  be  found  in  the  case  of 
Railroad  Co.  v.  Baum,  2G  Ind. 

The  liability,  in  the  third  class  of  cases, 
rests  not  upon  the  lawfulness  or  unlawful- 
ness of  the  act  done  by  the  agent,  but  as 
grounded  upon  the  failure  of  the  principal 
to  perform  a  contract  or  fulfill  an  obligation 
with  the  party  injured.  In  this  class  of 
cases  it  matters  not  whether  the  act  be  a 
"willful  trespass"  or  not;  whether  it  was 
done  in  the  course  of  the  employment  of  the 
servant  is  immaterial;  if  the  act  produces 
the  breach  of  the  contract,  or  causes  a  fail- 
lu-e  to  fulfill  the  existing  obligation,  the  lia- 
bility to  answer  attaches.  The  gravamen  of 
the  charge  is  not  that  the  agent  has  done 
this  or  that  act,  but  that  the  principal  has 
not  fulfilled  his  agreement. 

That  the  case  at  bar  comes  within  this 
class  of  cases  I  think  there  can  be  no  doubt, 
and  the  liability  of  the  defendants  is  well 
placed  upon  those  grounds,  by  Mr.  Justice 
WALTON,  and  could  be  sustained  upon  no 
other. 

In  the  light  of  these  authorities  and  de- 
cisions, ancient  and  modern,  emanating  from 
courts  of  the  highest  jurisdiction,  character, 
and  ability,  what  is  the  true  rule  of  dam- 
ages in  the  case  at  bar?  Or,  putting  the 
question  in  a  more  pertinent  form,  were  the 
defendants  liable  to  punitoi-y  damages,  such 
as  "is  sufl^cient  to  punish  the  defendants 
and  serve  as  a  warning  and  example  to 
others." 

If  the  act  of  Jackson  was  a  willful,  wan- 
ton, and  malicious  trespass  upon  his  part, 
and  was  neither  directly  nor  impliedly  au- 
thorized or  ratified  by  the  defendants,  the 
act  was  neither  in  fact  nor  legal  intendment 
the  act  of  the  defendants.  This  is  quite 
clear  from  reason  and  authority.  Although 
it  may  be  one  which  devolved  upon  them  a 
liability,  it  is  in  no  sense  their  act;  so  that, 
if  ordinarily  the  malice  of  the  acting  agent 
was  so  inseparably  connected  with  the  act 
that  it  would  attach  to  the  principal,  nolens 
volens,  in  those  cases  where,  by  legal  in- 
tendment, it  was  his,  the  principal's  act,  in 
this  case  it  would  not,  it  being  neither  in 
act  or  legal  intendment  the  act  of  the  de- 
fendants. 

The  requested  instruction  clearly  present- 
ed the  proposition  that  unless  the  act  was 
authorized  directly  or  impliedly,  or  subse- 
quently ratified  by  the  defendants,  they 
could  not  be  chargeable  with  the  motive  and 
intent  of  the  actor.  This  was  refused  and 
the  rule  left,  that,  regardless  of  authoriza- 
tion or  ratification,  they  might  be  punished 
for  the  willful,  wanton,  and  malicious  acts 
of  Jackson. 

The  x-uling,  it  is  apparent,  extends  to  cases 
not  within  the  first  class,  and  the  result  of 
placing  it  in  either  of  the  other  classes  is  to 
punish  one  for  the  malice  of  another.  To 
relieve  the  case  from  this  difflculty  an  ef- 
fort is  made  to  make  corporations  an  excep- 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


tion  to  the  rule,  althouj^h  all  the  authorities, 
whether  found  in  elementary  treatises  or 
judicial  decisions,  place  them  upon  the  same 
footing.  The  idea  put  forward  seems  to  be, 
that  the  servant  is  the  corporation.  lu  order, 
however,  that  the  position  nr.xy  certainly 
stand  as  it  is  made,  and  the  argument  pro- 
ceed upon  no  erroneous  deductions  of  mine, 
I  quote:  "A  corporation  is  an  imaginary  be- 
ing. It  has  no  mind  but  the  mind  of  its 
servants;  it  has  no  x'oice  but  the  voice  of 
its  servants,  and  it  has  no  hands  with  which 
to  act  but  the  hands  of  its  servants.  All  its 
schemes  of  miscliief,  as  Avell  as  its  schemes 
of  public  enterprise,  are  conceived  by  hu- 
man minds  and  executed  by  human  hands, 
and  those  minds  and  hands  are  its  minds 
and  hands.  All  attempts,  therefore,  to  dis- 
tinguish between  the  guilt  of  the  servant 
and  the  guilt  of  the  coiijoration;  or  the 
malice  of  the  servant  and  the  malice  of  the 
corporation;  or  the  punishment  of  the  serv- 
ant and  tlie  punishment  of  the  corporation  is 
'sheer  nonsense,'  and  only  tends  to  confuse 
the  mind  and  confound  the  judgment." 

In  relation  to  this  proposition  one  inquiry 
may  be  made,  viz.:  Have  these  servants  no 
"minds,"  no  "hands,"  and  no  "schemes"  ex- 
cept those  of  the  corporation?  Are  all  their 
schemes,  all  their  acts,  and  all  the  emana- 
tions of  their  minds  those  of  the  corporation? 
If  they  have  any  other,  shall  the  corpora- 
tion be  punished  for  them? 

Does  not  the  argument  attach  a  respon- 
sibility to  the  corporation  for  all  the  acts  of 
a  person  in  its  employ?  If  it  does  not, 
where  is  the  dividing  line?  It  is  all,  or  parr. 
What  part?  This  is  the  question  which  law- 
Avriters  and  judges  have  been  answering  for 
many  years,  and  whether,  in  the  estimation 
'of  any,  it  be  or  not  "sheer  nonsense,"  they 
have  distinguished  between  those  acts  of 
the  agent  for  which  the  corporation  is,  and 
those  for  which  it  is  not  liable. 

What  its  "voice"  commands,  what  its 
"hands"  do,  and  the  "schemes"  which  it  ex- 
ecutes, it  should  be  and  is  held  responsible 
for,  wliether  done  by  direct  or  implied  au- 
thority or  subsequently  ratified  by  them; 
and  when  they  do  this  in  Avanton  and  will- 
ful disregard  of  the  rights  of  others,  they 
may,  under  the  law  as  now  administered, 
be  punished  by  punitive  damages. 

But  when  the  "voice"  which  speaks,  and 
the  "hand"  which  executes,  is  not  that  of 
the  principal,  however  wanton,  willful,  and 
malicious  it  may  be,  the  "stones,"  even,  "cry 
out"  against  intiicting  upon  him  a  punish- 
ment therefor,  and  the  more  wanton  and 
malicious  the  act,  the  more  horrible  is  the 
doctrine. 

Corporations  are  but  aggregated  individ- 
uals acting  through  the  agency  of  man. 
Thej'  may  consist  of  a  single  individual,  or 
more,  and  they  are  no  more  ideal  beings 
when  thus  acting  than  the  individual  thus 
acting.  For  certain  acts  the  individual, 
though  not  manually  engaged  in  it,  is  held 


responsible.  For  the  same  acts  the  body  of 
individuals,  denominated  a  corporation,  are 
held  responsible.  The  principal  and  agent, 
in  both  cases,  are  separate  and  independent 
beings.  Agents  presuppo.se  a  principal,— 
somebody  to  act  for.  Somebody  whose  or- 
ders they  are  to  execute,  and  somebody  for 
whom  they  are  to  perform  service;  some- 
body who  is  answerable  to  them,  and  who 
may  be  answerable  for  the  acts  done  under 
their  direction.  Mr.  Justice  Brown,  in  Ilib- 
bard  v.  Railroad  Co.,  before  cited,  says,  "The 
conductor  and  those  who  aided  him  are  not 
the  company;  they  are  its  agents  and  serv- 
ants." If  the  employee  and  servant  is  the 
corporation,  in  fact  or  legal  intendment,  it 
does  not  act  through  agents.  Its  acts  are 
all  the  direct  acts  of  principals  without  tlie 
intervention  of  any  other  power,  and  it  car- 
ries us  back  to  a  responsibility  for  all  the 
acts  of  a  person  employed  by  a  corporation, 
whether  those  acts  have  any  relation  to  his 
partieidar  employment  or  not,  a  proposition 
too  absurd  and  monstrous  in  its  results  to  be 
entertained  at  all.  Mr.  Justice  Campbell,  in 
giving  the  opinion  of  the  supreme  court  of 
the  United  States,  in  the  case  before  cited 
(21  How.  202),  says,  the  result  of  the  cases  is 
that  for  acts  done  in  the  course  of  its  busi- 
ness and  of  their  employment  "the  corpora- 
tion is  responsible,  as  an  individual  is  re- 
sponsible, under  similar  circumstances." 

I,  therefore,  come  to  the  conclusion  that  if 
liable  at  all  to  be  punished  for  the  malice 
of  Jackson,  it  must  be  upon  some  oth'>r 
ground  than  their  legal  identity  with  hinn 
and  that  in  no  sense  can  his  malice  be  said 
to  be  their  malice;  and  there  seems  to  be 
strong  indications  in  the  charge  of.  the  pre- 
siding judge,  that  he,  at  that  time,  placed  it 
upon  no  such  grounds.  The  defendants,  in 
view  of  this  assumption  by  the  plaintiff,  "re- 
quested the  presiding  judge  to  instruct  the 
jury  that  the  plaintiff  is  not  entitled  to  re- 
cover against  the  defendant  company  any 
greater  damages  than  he  might  recover 
against  Jackson  himself,  for  the  same  cause 
of  action  upon  similar  evidence."  This  in- 
struction the  coui't  declined  to  give,  and  re- 
mai-lved  to  the  jury,  "I  think  you  cannot 
rightfully  be  required  to  enter  into  a  consid- 
eration of  the  damages  which  a  party,  not 
now  before  the  court,  and  has  not,  therefore, 
had  an  opportunity  to  be  heard,  ought  to  pay, 
and  then  measure  the  damages  in  this  case 
which  has  been  heard  by  those  which  you 
lliink  might  be  just  in  another  case  which 
has  not  been  heard.  We  will  endeavor  to 
decide  this  case  right  now,  and  when  Jack- 
son's case  comes  before  us,  if  it  ever  does, 
we  will  endeavor  to  decide  that  right." 

I  think  the  argument  is  very  strong  from 
this  remark,  that  it  was  not  the  malice  and 
ill-will  of  Jackson  that  was  designed  to  be 
punished,  for  he  says  his  case  has  not  been 
heard.  The  court  say,  substantially,  we 
know  not  what  excuses  or  justification  he 
may  offer  when  htard,  if  ever,   "and  when 


46 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


his  case  comes  before  us,  if  ever  it  does,  we 
will  eudeavor  to  decide  that  right."  One 
would  suppose  that  it  was  some  "wanton, 
malicious  act,  committed  in  reckless  and  will- 
ful disregard  of  the  rights  of  the  injured  par- 
ty," by  these  defendants  that  was  to  receive 
such  punishment  as  should  "serve  a  warning 
and  example  to  others,"  and  not  such  an  act 
done  b}'^  Jackson.  The  argument  would  seem 
to  proceed  and  say  Jackson,  for  his  act,  mas'- 
deserve  one  punishment,  and  those  defend- 
ants, for  their  acts,  may  deserve  another; 
and  T  cannot  well  forbear  the  inquiry  here, 
if  there  is  not  here  some  evidence  of  an  "at- 
tempt to  distinguish  between  the  guilt  of 
the  servant  and  the  guilt  of  the  corporation; 
or  the  malice  of  the  servant,  and  the  malice 
of" the  corporation;  or  the  punishment  of  the 
servant,  and  the  punishment  of  the  coiido ra- 
tion?" Was  it  here  that  "sheer  nonsense" 
was  enacted,  and  "the  mind  confused,"  and 
the  "judgment  confounded"? 

If  it  was  the  malicious  act  of  the  defend- 
ants that  was  to  be  punished,  the  enormity 
of  Jackson's  wrong  had  indeed  nothing  to  do 
with  it.  If  it  was  the  malicious  wrong  of 
Jackson  that  was  to  be  punished,  why  should 
a  party,  innocent  of  all  wrong  in  the  matter, 
be  punished  more  than  the  wrong-doer  him- 
self. If  he  was  the  coiiioratiou,  why  would 
not  all  the  acts  of  extenuation  and  justifica- 
tion surrounding  him  be  also  the  acts  of  the 
corporation,  and  be  proper  elements  to  be 
considered  in  graduating  or  fixing  the  pen- 
alty? How  could  his  case  come  before  us,  if 
he  was  the  corporation?  Would  it  be  to  be 
punished  for  the  act  of  the  corporation? 

If  we  hold  both  guilty  and  both  liable,  it 
must  be  founded  upon  the  idea  of  two  actors, 
and  that  the  employee  is  not  only  the  corpo- 
ration but  somebody  else,  and  the  nonentity 
of  agent  becomes  itself  a  nonentity,  and  in- 
stead of  a  mere  imaginary  thing  which  swal- 
lows up  and  extinguishes  all  the  relations  of 
principal  and  agent,  and  renders  any  attempt 
to  distinguish  between  them  "sheer  non- 
sense," we  do  have  two  distinct,  independent, 
accountable  subjects,  susceptible  of  being 
brought  before  the  courts  to  answer  and  be 
punislied,  and  we  are  not  left  to  the  ideal  ac- 
tion of  punishing  an  ideal  existence.  Again; 
if  the  actor  is  brought  before  the  court  and 
punished,  would  he  be  punished  for  the  act 
of  the  corporation  or  his  own  act?  for  the 
malice  of  the  corporation,  or  his  ov>^n  malice? 
If  imprisoned,  should  we  say  the  corporation 
was  imprisoned? 

If  not,  and  he  is  (as  undoubtedly  he  may 
be)  called  to  answer  for  an  assault,  and  pun- 
ished for  an  assault,  when  we  come  to  fix  the 
punishment,  do  we  not  distinguish  between 
his  guilt  and  the  guilt  of  the  corporation,  his 
malice  and  the  malice  of  the  corporation? 
And  when  the  rule  is  required  that  we  pun- 
ish him  in  the  same  manner  and  to  the  same 
extent  as  the  corporation,  should  we  not  reply 
very  much  as  did  the  presiding  judge  at  the 
trial?     I  think  there  can  be  no  two  opinions 


about  the  matter,  and  that  there  is  manifestly 
a  distinction  betAveen  the  two,  and  that  there 
are  two  to  distinguish  between,  and  that 
when  the  act  is  authorized  by  any  previous 
command  or  subsequent  adoption,  it  is  not, 
and  cannot  in  the  nature  of  things  be  made 
the  act  of  another  than  the  actor.  Laws  may 
be  made  making  others  responsible  therefor, 
but  it  is  the  act  of  him  who  does  it,  and  not 
of  him  who  neither  does  nor  authorizes  it; 
and  no  amoimt  of  judicial  legislation  or  re- 
finement can  make  it  so;  as  before  remarked, 
it  is  not  possible  in  the  nature  of  things. 

Again,  if  this  servant  is  the  corporation, 
what  becomes  of  the  law  regulating  the  lia- 
bility of  the  principal  for  an  injury  received 
by  an  employee  while  in  the  business  of  the 
corporation.  It  is  held,  that  if  the  injury 
was  produced  by  the  carelessness  or  negli- 
gence of  the  master  or  corporation,  they  must 
respond  in  damages;  but  if  produced  by  the 
act  of  a  fellow-servant,  they  are  not  liable. 
Is  not  here  a  distinction  recognized  between 
the  guilt  of  the  servant  and  the  guilt  of  the 
corporation?  Is  not  here  a  manifest  distinc- 
tion noted  and  acted  upon  between  the  serv- 
ant and  corporation?  If  the  servant  is  the 
coii:)oration,  it  is  the  act  of  the  corporation 
when  done  by  the  fellow-servant.  But  these 
cases  say,  no.  You  assume  the  risks  arising 
from  the  acts  of  your  fellow-servants,  but 
not  the  acts  of  your  principal,  the  corpora- 
tion; when  the  corporation  is  negligent  you 
may  recover,  but  when  it  is  the  sei-vant,  you 
cannot.  Again,  I  ask,  how  can  this  be,  if  the 
servant  is  the  corporation?  This  new  idea, 
it  appears  to  me,  has  in  it  more  of  ingenuity 
than  logic  or  substance;  it  is  altogether  Ideal, 
and  if  it  finds  place  in  the  law,  it  will  be 
among  its  fictions. 

The  learned  judge  then  adds,  "And  it  might 
as  Avell  not  be  applied  to  them  at  all,  as  to 
limit  its  application  to  cases  where  the  serv- 
ant is  directly  and  specially  directed  by  the 
corporation  to  maltreat  and  insult  a  passen- 
ger, or  to  cases  where  such  an  act  is  directly 
and  specifically  ratified;  for  no  such  cases 
will  ever  occur."  The  instruction  requested 
and  refused,  used  the  term  directly  or  "im- 
pliedly," and  with  this  sentence  so  amended, 
I  have  simply  to  say,  that  if  no  such  case 
ever  does  occur,  there  is  no  occasion,  right, 
or  propriety  in  inflicting  the  punishment.  If 
the  act  is  neither  directly  nor  impliedly  author- 
ized or  ratified,  there  is  in  it 'no  wantonness, 
no  malice,  and  no  ill-will  toward  the  person 
injured,  and  no  public  wrong  by  them  done 
to  be  redressed  or  atoned  for.  Repentance 
with  them  is  absolutely  impossible.  The  ar- 
gument is  simply  this:  if  we  do  not  punish 
you  when  you  do  not  directly  or  impliedly 
authorize  or  adopt  a  wrong,  we  shall  never 
have  an  opportunity,  for  you  never  will  thus 
authorize  or  adopt  one.  The  argument  is 
clearly  stated  by  the  learned  judge,  and  I 
leave  it  as  he  left  it,  remarking,  that  if  the 
end  to  be  attained  is  the  punishment  of  rail- 
road coi-porations  whether  guilty  or  innocent. 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


47 


the  rule  requiring  them  first  to  be  fe'uilty  of 
AVi'ong  bad  better  be  abolished. 

That  the  learned  judge  meant  to  state  his 
argument  thus,  is,  1  think,  apparent  from  the 
remark  which  immediately  follows:  "that  if 
those  who  are  in  the  habit  of  thinking  that 
it  is  a  terrible  hardship  to  punish  an  inno- 
cent corporation  for  the  wickedness  of  its 
iigents  and  servants,  Avdl  for  a  moment  reflect 
upon  the  absurdity  of  their  own  thoughts, 
their  anxiety  will  be  cured." 

In  Railroad  Co.  v.  Baum,'26  Ind.  70,  the 
court  say:  "Nor  will  sound  policy  maintain 
the  application  of  a  rule  to  I'ailways  or  cor- 
porations on  this  subject,  which  shall  not  be 
alike  applied  to  others,  as  has  been  intimated 
in  some  quarters.  The  suggestion  is  not  lit 
to  be  made,  much  less  sanctioned,  in  any  tri- 
bunal pretending  to  admiuisver  justice  impar- 
tially." 

In  another  case  it  is  said:  "The  law  lays 
down  the  same  rule  for  all,  and  we  cannot 
make  a  different  rule  in  the  case  of  a  serv- 
ant of  a  railway  company  and  an  ordinary 
tradesman;"'  "and,  therefore,  treating  Phil- 
lips as  the  servant,  the  company  are  not  lia- 
ble for  his  tortious  act  any  more  than  other 
individuals  would  be."  Roe  v.  Railroad  Co., 
7  Eng.  Law  &  Eq.  547. 

With  the  criticism  (if  it  be  entitled  to  that 
appellation)  of  the  opinion  upon  railroads  and 
their  management  1  have,  in  the  position  I 
now  occupy,  no  occasion  to  deal.  Mj-  duty 
I  consider  performed,  and  best  performed, 
when  I  have  endeavored  to  ascertain  the  law 
as  it  is,  and  apply  it  to  causes  as  they  are 
presented,  rather  than  in  making  rules  for 
any  real  or  supposed  grievances.  The  law- 
making power  is  ample  to  afford  the  neces- 
saiy  means  of  redress  where  none  now  ex- 
ists; and  did  these  great  and  growing  evils 
really  exist,  we  might  reasonably  expect  to 
find  the  law-makers,  the  people,  those  who 
must  suffer  by  their  existence,  exercising 
their  corrective  powers. 

If  the  evil  is  not  sufficient  to  induce  the 
suH'erers  to  provide  a  remedy,  it  will  hardly 
justify  the  judiciary  in  leaving  the  clear  path 
of  the  duty  of  expounding  the  law,  and  as- 
suming the  powers  and  responsibilities  ot 
law-makers.  Perhaps  there  has  been  no  one 
thing  that  has  introduced  into  the  law  .so 
much  confusion  and  embarrassment  as  tne 
engrafting  policy  of  courts;  adding  here  a  lit- 
tle and  there  a  little,  till  the  original  is  cover- 
ed with  tliese  judicial  excrescences;  and  not 
unfrequeutly  the  jewel  is  lost  in  its  surround- 
ings of  dross. 

The  plaintiff,  in  the  printed  brief  of  his  ar- 
gument presented  in  this  case,  says:  "If, 
therefore,  an  individual  master,  perhaps  per- 
sonally innocent  of  positive  evil  intent  is 
liable  to  punishment  by  exemplary  damages 
for  the  malice  of  his  servant,  for  a  much 
stronger  reason  ought  a  soulless  corporation 
to  be  responsible  for  the  wicked  and  wanton 
acts  of  its  sole  representative." 

In  my  judgment,  if  the  premise  were  right 


in  this  iJiopositiiin.  there  is  no  reason  why 
the  conclusion  is  not  right.  But  I  know 
of  no  case  where  the  master,  innocent  of  all 
wrong  upon  his  own  part,  has  been  held  to  be 
liable  to  punishment  for  the  malice  of  ids 
servant.  It  is  only  where  he  has  been  a  par- 
ticii)ator  in  some  manner  in  the  wantonness 
and  malice  displayed  in  the  act,  and  it  is 
his  own  wanton  and  malicious  act  that  is 
then  pvmished.  The  plainlitf  says  further: 
"Besides,  if  corporations  cannot  be  reached 
in  exemplary  damages  for  the  malice  of 
their  servants,  they  escape  entirely,  and  thus 
stand  infinitely  better  than  citizens  wno  are 
liable  in  punitory  damages,  not  only  for  their 
own  personal  acts,  which  latter  it  is  obvious 
a  corporation  can  never  be  guilty  of  in  the 
strict  sense."  If  citizens  were  liable  in  puni- 
tory damages  for  the  malice  of  their  servants, 
in  nowise  participated  in  by  themselves,  the 
conclusion  that  corj^orations  would  stand  bet- 
ter than  citizens,  if  they  escaped  a  punish- 
ment for  the  malice  of  their  servants,  is  irre- 
sistible; but  again  I  say,  I  know  of  no  law, 
authority,  or  reason  for  holding  an  innocent 
citizen  to  punishment  for  the  malice  of  his 
servant  or  agent.  It  is  quite  as  much  as 
one  can  reconcile  with  just  accountability  to 
hold  him  to  compensate  for  injuries  malic- 
iously inflicted  in  the  course  of  his  employ- 
ment, without  adding  punishment. 

The  theory  of  punitive  damages  is  the  in- 
fliction of  a  punishment  for  an  offense  com- 
mitted. It  presupposes  the  existence  of  a 
moral  wrong,  an  infraction  of  the  moral  code; 
a  wrong  in  which  the  community  has  some 
interest  in  the  redress,  and  in  securing  im- 
munity from  in  the  future.  It  presupposes 
also  an  offender,  and  designs  to  punish  tlmt 
offender.  To  punish  one  not  an  offendar  is 
against  the  whole  theory,  policy,  and  practice 
of  the  law  and  its  administrators.  "It  is 
better  that  ten  guilty  men  should  escape  than 
one  innocent  man  should  sutler."  Before  the 
smallest  fine  can  be  intiicted,  evidence,  leav- 
ing no  reasonable  doubt  of  the  guilt  of  the 
party  to  be  thus  punished,  must  be  adduced. 
Evidence  that  he  possessed  the  evil  intent, 
wicked  and  depraved  spirit;  that  it  was  ha 
that  was  regardless  of  social  duty.  The  idea 
of  punishing  one  who  is  not  particeps  crimiuis 
in  the  wrong  done  is  so  entirely  devoid  of 
the  first  principles  and  fundamental  elements 
of  law,  that  it  can  never  find  place  among  the 
rules  of  action  in  an  intelligent  and  virtuous 
community.  There  is  no  parallel,  for  it  is 
in  the  administration  of  the  law,  and  courts 
of  the  highest  repute  have,  whenever  the 
question  has  arisen,  declared  it  unsound  in 
principle  and  inequitable  in  practice. 

In  Hagan  v.  Railroad  Co.,  3  R.  I.  ISS, 
Broughton,  J.,  in  delivering  the  opinion  of 
the  court  says:  "In  cases  where  punitive 
or  exemplary  damages  have  been  assessed, 
it  has  been  done  upon  evidence  of  such  will- 
fulness, recklessness,  or  wickedness  on  the 
part  of  the  party  at  fault  as  amounted  to 
criminality,  which  for  the  good  of  society  and 


48 


COMPENSATORY  AND  EXEMPLARY  I)AMA(^ES. 


security  to  the  individual  ouylit  to  be  puu- 
isbed.  If,  in  such  cases,  or  in  any  case  of 
a  civil  nature,  it  is  the  policy  of  the  law  to 
visit  upon  the  offender  such  exemplary  dam- 
ages as  v^all  operate  as  a  punishment,  and 
teach  the  lesson  of  caution  to  prevent  repeti- 
tion of  such  criminality,  yet  we  do  not  see 
how  such  damages  can  be  allowed,  when  a 
principal  is  prosecuted  for  the  tortious  act 
of  a  servant,  unless  there  is  proof  in  the  case 
to  implicate  the  principal,  and  make  him 
particeps  criminis  of  his  agent's  act.  No 
man  shall  be  punished  for  that  of  which  he 
is  not  guilty.  Cases  may  arise  in  which 
the  principal  is  deeply  implicated  in  the  serv- 
ant's guilt  or  fault,— cases  in  which  the  con- 
duct of  the  principal  is  such  as  to  amount 
to  a  ratification.  In  all  such  cases,  the  prin- 
cipal is  particeps  criminis,  if  not  the  princi- 
pal offender;  and  whatever  damages  might 
properly  be  visited  upon  him  who  commits 
the  act,  might  be  very  properly  iutiicted  upon 
him  who  thus  criminally  participates  in  it. 
But  where  the  proof  does  not  implicate  the 
principal,  and  however  wicked  the  servant 
may  have  been,  the  principal  neither  express- 
ly nor  impliedly  authorizes  or  ratifies  the  act, 
and  the  criminality  of  it  is  as  much  against 
him  as  against  any  other  member  of  society, 
we  think  it  is  quite  enough  that  he  shall  be 
liable  in  comi>ensatory  damages  for  the  injury 
sustained  in  consequence  of  the  wrong  of  a 
person  acting  as  his  seiwant." 

In  Railroad  v.  Finney,  10  Wis.  388,  which 
was  a  case  for  putting  a  passenger  off  the 
cars  before  reaching  the  end  of  the  route  to 
which  his  ticket  entitled  him,  the  court  be- 
iow  instructed  the  jiu-y  that  "in  this  cast>, 
if  you  find  the  complaint  sustained  by  evi- 
\lence,  you  may  give  such  damages  as  shall 
compensate  the  plaintiff'  for  his  loss  by  the 
act  of  the  defendant,  and  also  such  exempla- 
ry damages  as  you  may  find  proper  under 
the  circumstances."  The  defendants  request- 
ed an  instruction  "that  they  should  give  the 
plaintiff  such  damages  only  as  would  com- 
pensate him  for  his  loss  by  reason  of  putting 
off  the  cars;  that  they  could  not  give  vindictive 
or  punitory  damages,  called  smart-money."  This 
instruction  was  refused.  The  court,  in  giv- 
ing their  opinion,  say:  "The  judge  improp- 
erly refused  to  instruct  the  jury  as  requested 
by  defendants'  counsel,  that  the  plaintiff'  was 
only  entitled  to  recover  such  sum  as  would 
compensate  him  for  his  actual  loss  by  being 
put  off  the  cars,  and  that  he  was  not  entitled 
to  vindictive  damages  or  smart-money.  If 
it  be  admitted  that  the  action  of  the  con- 
ductor in  expelling  the  plaintiff  from  the  cars 
was  willful  and  malicious,  or  so  grossly  neg- 
ligent, ()i)presive,  or  insulting  as  to  bring  the 
case  within  the  rule  authorizing  exenq^lary 
damages,  if  the  suit  had  been  brought  against 
him;  yet  there  was  not  one  word  of  testi- 
mony offered  showing,  or  tending  to  show, 
that  such  conduct  on  his  part  was  either  pre- 
viously directed,  or  subseciuently  ratified  or 
adopted  by  the  company;    although  they  may 


be  liable  in  this  action  to  indemnify  the 
plaintiff  for  tlie  actual  loss  or  damage  which 
he  sustained  by  reason  of  the  misconduct  of 
the  conductor,  because  it  occasioned  a  breach 
of  their  duty  or  obligation  to  carry  him  from 
Madison  to  Edgerton.  Still  it  does  not  fol- 
low that  thej^  may  be  visited  with  damages 
by  way  of  punishment,  without  proof  that 
they  directed  the  act,  or  subsequently  con- 
firmed it.  Defendants  are  not  to  be  visited 
with  damages  by  way  of  punishment,  with- 
out proof  that  they  directed  the  act  to  be 
done,  or  subsequently  confirmed  it.  Such 
damages  are  given  by  way  of  punishing  the 
malice  or  oppression,  and  aj'e  graduated  by 
the  intent  of  the  party  committing  the  wrong. 
But  how  can  such  damages  be  assessed 
against  a  principal  with  such  intent?  Sure- 
ly they  cannot  be.  But  in  an  action  against 
the  principal  for  the  act  of  the  agent,  how 
can  the  question  of  their  assessment  be  prop- 
erly submitted  to  the  jury  Avheu  there  is  no 
evidence  coimecting  the  principal  with  such 
intent  on  the  part  of  the  agent?  Clearly  it 
cannot."  The  damages  in  this  case  were 
$175,  and  the  judgment  of  the  court  below 
was  ^-eversed. 

Turner  v.  Railroad  Co.,  34  Cal.  594,  was 
an  action  for  unlawfully  ejecting  the  plaintiff' 
from  a  car  by  the  conductor.  The  court  be- 
low nded  "that  the  injury,  if  committed,  and 
if  a  willful  one  on  the  part  of  the  defendants 
in  their  servant  the  conductor,  and  accom- 
panied by  malice  or  such  acts  as  in  their 
nature  tended  to  show  a  purpose  of  resent- 
ment or  ill-will,  or  a  disposition  to  degrade 
the  plaintiff',  entitled  her  to  what  is  called 
exemplary  damages."  After  some  comment, 
and  citing  Story,  Ag.  §  45G,  19  Wend.  343. 
and  14  How.  486,  before  referred  to,  th? 
court  say:  "1'ested  by  these  principles,  it  is 
obvious  that  in  this  case  the  defendant  was 
not  liable  for  any  malicious  and  wanton  con- 
duct of  the  conductor.  If  liable  at  all,  its 
liability  must  be  confined  to  the  actual  dam- 
ages which  the  plaintiff  suffered.  To  render 
the  defendant  liable  to  punitive  damages,  it 
was  incumbent  on  the  plaintiff  to  show  that 
the  act  complained  of  was  done  with  the 
authority  either  express  or  implied  of  the 
defendant,  or  was  subsequently  adopted  by 
the  company."  "If  her  expulsion  resulted 
from  the  malice  of  the  conductor,  or  was  ac- 
companied by  violence  or  personal  indignity, 
the  conductor  alone  is  responsible  for  such 
damages  as  she  may  be  entitled  to  for  this 
cause  beyond  the  actual  damages  resulting 
from  her  exclusion  from  the  car,  unless  as 
before  stated  the  company  expressly  or  tacit- 
ly participated  in  the  malice  and  violent  con- 
duct of  the  conductor.  In  other  words,  if 
the  act  of  the  conductor  was  wholly  unau- 
thorized, the  company  is  liable  for  the  actual 
damage,  and  the  conductor  alone  for  the  puni- 
tive damages,  if  any." 

There  is  another  case  in  the  same  volume 
(34  Cal.  580,— Pleasants  v.  Railroad  Co.),  and 
decided  upon  the  same  grounds. 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


4i? 


In  Clark  v.  Newson,  1  Exch.  131,  and  1 
Welsb.  H.  &  G.  (a  case  of  joint  trespass  by- 
two),  Pollock,  C.  B.,  said:  "I  think  it  would 
be  very  wrong  to  make  the  malignant  motive 
of  one  party  a  ground  of  aggravation  of  dam- 
ages against  the  other  party  who  were  al- 
together free  from  any  improper  motive.  In 
such  case  the  plaintiff  ought  to  select  the 
party  against  whom  he  means  to  get  ag- 
gravated damages." 

In  relation  to  the  views  thus  expressed,  it 
is  said  by  Mr.  Justice  WALTON,  in  his  opin- 
ion, that:  "In  none  of  them  was  there  any 
evidence  that  the  servant  acted  wantonly  or 
maliciously;  they  were  simply  cases  of  mis- 
taken duty.  And  what  these  same  courts 
would  have  done  if  a  ease  of  such  gross  and 
outrageous  insult  had  been  before  them,  as 
is  now  before  us,  it  is  impossible  to  say;  and 
long  experience  has  shown  that  nothing  is 
more  dangerous  than  to  rely  upon  the  ab- 
stract reasoning  of  courts,  when  the  cases  be- 
fore them  did  not  call  for  the  application  of 
the  doctrines  which  their  reasoning  is  intend- 
ed to  establish."  Waiving,  for  tlie  present, 
the  question  of  fact  as  to  whether  they  were 
or  not  simply  cases  of  mistaken  duty,  we 
find  in  each  of  them  the  Question  of  puni- 
tive damages  legitimately  and  clearly  raised 
and  discussed,  and  the  reasoning,  such  as  it 
is,  is  before  the  profession.  The  cases  are 
not  cited  as  mere  authority  by  reason  of 
their  being  decided  cases  by  courts  of  com- 
petent, jurisdiction,  but  because  the  reason- 
ing is  believed  to  support  the  decision.  If  the 
reasoning  is  bad,  fallacious,  inconclusive, 
some  Avould  adopt  the  plan  of  exhibiting 
these  facts  by  a  course  of  reasoning  of  their 
own,  rather  than  by  promulgating  a  general 
proposition  that  it  is  unsafe  to  rely  upon 
their  reasoning.  If  the  reasoning  is  sound 
and  applicable  to  case  at  bar,  it  does  not 
matter  that  it  was,  or  was  not  necessai-ily 
called  out  in  the  case  into  which  it  has  been 
introduced,  and  it  requires  some  other  an- 
swer than  mere  criticism  upon  course  of  pro- 
ceeding by  the  judges  in  those  cases. 

That  the  gentlemen,  composing  the  several 
courts  alluded  to,  supposed  the  cases  called 
for  tlie  decisions  and  reasonings  they  made, 
cannot  well  be  doubted,  and  an  examination 
of  the  cases  as  reported  in  the  printed  vol- 
vimes  of  the  reports  referred  to,  Avill,  I  think, 
leave  the  reader  in  no  doubt  concerning  that 
question. 

There  are  some  other  cases  to  be  found  in 
the  books  not  referred  to  on  the  defendant's 
brief  to  which  I  will  advert  as  indicating  the 
views  of  some  of  the  courts  in  other  states. 

Ackersou  v.  Railway  Co.,  32  N.  J.  Law, 
254,  was  an  action  to  recover  damages  for 
injuries  sustained  while  traveling  in  their 
cars  by  reason  of  the  carelessness  and  diso- 
bedience of  the  employees  of  the  road.  The 
court  say:  "It  appeared  on  trial  that  the  de- 
fendants had  adopted  all  needful  rules  and 
regulations  for  the  running  of  their  trains, 
and  had  employed  competent  persons  as  ten- 

LAW  DAM.2d  Ed.-4 


ders  of  the  switch  at  which  the  accident  oc- 
curred. No  care  or  caution,  required  for  tlie 
safety  of  the  passengers,  had  been  omitted 
by  the  company.  Through  the  carelessness 
and  disobedience  of  their  agents  the  acci- 
dent happened."  "In  fact,  the  only  fault  or 
negligence  complained  of  was  that  of  the 
employees  of  the  company.  Where  a  rail- 
rC'ad  company  adopts  all  rules  and  regula- 
tions needful  for  the  safety  of  passengers, 
and  employs  competent  agents,  whose  duty  it 
is  to  see  that  these  rules  and  regulations  are 
observed,  I  do  not  think  that  the  company, 
in  case  of  injury  to  the  passengers  happen- 
ing by  reason  of  the  failure  of  the  agent  to 
perform  his  duty,  can  be  held  liable  for  puni- 
tive damages.  If,  however,  the  company,  as 
such,  is  in  fault,  a  different  rule  applies. 
The  company,  for  its  own  carelessness,  may 
be  justly  held  liable  for  smart-money.  This 
rule  does  not  prevail  where  the  carelessness 
is  only  that  of  a  subordinate  agent.  There  is 
no  justice  in  i^unishiug  the  company  after  it 
has  done  all  in  its  power  to  prevent  an  in- 
jury. The  agent,  if  guilty  of  negligence,  may, 
in  certain  cases,  be  proceeded  against  by  in-- 
dictment.  I  cannot  yield  to  the  argument  so^ 
earnestly  urged  by  the  counsel  of  the  plain- 
tiff, that  by  construction  of  law  the  compa- 
ny is  guilty  of  gross  negligence  whenever  its 
agent  is,  and  is,  therefore,  to  be  ti-eated  the 
same  as  if  through  its  own  negligence  the  in- 
jury happened.  I  think  the  verdict  was 
against  the  charge  of  the  court  in  that  it  is, 
to  some  extent  at  least,  for  punitive  dam- 
ages. Full  compensation  to  the  plaintiff  for 
all  real  loss,  present  and  prospective,  was  the 
measure  of  damages." 

I'orter  v.  Railway  (J">.,  32  N.  J.  Law,  2U1, 
argued  at  the  same  time,  was  determined  up- 
on the  rules  announced  in  this  case. 

These  cases  well  indicate  the  views  of  the 
court  in  New  Jersey.  McKeon  v.  Railway 
Co.,  42  Mo.  79,  Avas  an  action  for  an  injury 
done  to  a  passenger.  The  court,  in  giving 
their  opinion,  say:  "If  the  conduct  of  this 
driver  was  willful  and  malicious  with  intent 
to  injure  the  plaintiff,  he  might  be  liable  to 
indictment  for  assault  with  intent  to  kill,  or 
some  other  criminal  offense;  but  his  em- 
ployer W'as  not  responsible  for  his  crimes, 
nor  liable  for  his  acts  of  willful  and  mali- 
cious trespass.  The  company  was  answera- 
ble only  for  his  negligence,  or  his  incapacity, 
or  unskillfulness  in  the  performance  of  the 
duties  assigned  to  him.  In  such  cases  we 
have  no  hesitation  in  saying,  that  punitory 
damages,  or  any  damages  beyond  a  full  com- 
pensjition  for  the  injury  sustained,  cannot  be 
allowed." 

Railroad  Co.  v.  Smith,  2  Duv.  (Ky.)  ooG^ 
was  a  case  where  the  evidence  tended  to 
show  that  the  car  of  the  plaintiffs  was  upset 
by  the  carelessness  of  their  driver,  .and  de- 
fendant injured  thereby.  The  instruction 
was,  "That  if  the  car  was  thrown  from  the 
track  by  the  fast  and  careless  driving  of  the 
defendants'     (now     plaintiffs')     agent,     they 


50 


COMPENSATORY  AND  EXEMrLARY  DAMAGES. 


should  find  for  plaintiff  (now  defendant),  and 
that  the  jury  are  not  necessarily  restricted  to 
actual  damages,  but  may,  in  their  discre- 
tion, award  such  exemplary  damages  as  they 
deem  just  and  proper  in  view  of  all  the  facts 
in  the  case."  The  court  say,  the  facts  did 
not  authorize  a  punishment  of  the  defend- 
ants, and  the  court  below  should  have  re- 
stricted them  to  compensatory  damages,  and 
for  this  reason  the  judgment  was  reversed. 

In  the  case  of  Hill  v.  Railroad  Co.,  11  La. 
Ann.  292,  the  court  used  the  following  lan- 
guage: "In  actions  of  this  kind,  it  is  not 
within  the  province  of  the  jury,  although 
negligence  is  clearly  proven,  to  give  vindic- 
tive damages,  as  is  sometimes  allowed  in 
case  of  Avillful  and  malicious  injuries.  The 
company,  in  such  cases,  is  not  to  be  pun- 
ished for  the  negligence  of  its  agents  as  a 
crime." 

Keene  v.  Lizardi,  8  La.  27,  was  an  action 
brought  to  recover  damages  of  defendants, 
ship-owners,  for  injuries  to  plaintiff's  wife, 
at  the  hands  of  a  master  of  a  vessel  on  Avhich 
she  Avas  a  passenger.  The  evidence  showed 
gross  neglect  and  wanton  outrage  on  the  part 
of  the  master  against  the  lady.  In  deliver- 
ing the  opinion  of  the  court,  the  judge  said: 
"It  is  true,  juries  sometimes  give  what  is 
called  smart-money.  They  are  often  war- 
ranted in  giving  vindictive  damages  as  a 
punishment  inflicted  for  outrageous  conduct. 
But  this  is  only  justifiable  in  an  action 
against  the  wrong-doer,  and  not  against  per- 
sons who,  on  account  of  their  relation  to  the 
offender,  are  only  consequentially  liable  for 
his  acts,  as  the  principal  is  liable  for  the 
acts  of  his  factor  or  agent." 

In  Railroad  Co.  v.  Rogers.  28  Ind.  1,  it  is 
said:  "Whatever  rule  of  damages  would  ap- 
ply in  a  suit  against  a  natural  person,  ought 
to  apply  in  a  suit  against  a  corporation.  Any 
discrimination  in  that  regard  would  shock 
the  public  sense  of  impartial  justice,  and 
would  be  an  unjust  innovation.  The  instruc- 
tions, governing  subordinate  employees  and 
agents,  may  be  devised  in  such  utter  disre- 
gard of  the  rights  of  others,  that  obedience 
to  them  will  result  in  palpable  wrong  to  in- 
dividuals; whether  it  was  so  here  was  a 
question  for  the  jury,"— thus  putting  the 
question  whether  the  acts  are  done  in  obedi- 
ence to  instructions  that  the  execution  of 
would  result  in  palpable  wrong. 

Post  Co.  V.  McArthur,  16  Mich.  447,  was  an 
action  by  McArthur  for  publishing  an  al- 
leged libel.  The  court  say:  "The  employ- 
ment of  competent  editors,  the  supervision, 
by  proper  persons,  of  all  that  is  to  be  insert- 
ed, and  the  establishment  and  habitual  en- 
forcement of  such  rules  as  Avould  probably 
exclude  improper  items,  would  reduce  the 
blame- worthiness  of  a  publisher  to  a  mini- 
mum for  any  libel  inserted  without  his  priv- 
ity or  approval,  and  should  confine  his  lia- 
bility to  such  damages  as  include  no  redress 
for  wounded  feeling,  beyond  what  is  inevita- 
ble  from   the  nature   of  the   libel.    And    no 


amount  of  exi)ress  malice  in  his  employees 
should  aggravate  damages  against  him,  when 
he  has  thus  purged  himself  from  blame." 
"While,  therefore,  in  the  present  case  the  re- 
porters were  guilty  of  carelessness  in  receiv- 
ing hearsay  talk  of  legal  charges,  which 
could  only  be  lawfully  published  in  accord- 
ance with  the  documentary  facts,  and  while 
there  could  be  no  justification  for  publishing 
outside  scandal  against  an  individual  from 
any  source  whatever,  yet  the  defendants 
were  only  responsible  beyond  the  damages 
recoverable  under  any  circumstances,  for 
such  a  libel  to  the  extent  of  their  own  con- 
duct in  the  case,  or  want  of  care  used  in 
guarding  their  columns  against  the  insertion 
of  such  articles." 

In  the  case  of  Railroad  Co.  v.  Baum,  before 
cited,  the  court  sav:  "But  when  the  act  is 
unnecessary  to  the  performance  of  the  mas- 
ter's service,  and  not  really  intended  for  that 
purpose,  but  is  done  by  the  seivant  to  grat- 
ify his  own  malice,  though,  under  pretense 
of  executing  his  employment,  it  is  not  done 
to  serve  the  master,  and  is  not,  in  fact,  with- 
in the  scope  of  the  employment,  and  the  mas- 
ter is  not,  therefore,  liable."  "Under  these 
circumstances,  last  enumerated,  it  is  not  easy 
to  perceive,  in  the  nature  of  things,  any  just 
reason  for  holding  the  master  responsible. 
It  will  not  do  to  say  he  shall  answer  in  dam- 
ages, because  by  employing  the  servant  he 
gives  him  opportunity  to  maltreat  those  with 
whom  he  comes  in  contact  in  discharging  his 
duties,  that  reason  would  hold  the  shop-keep- 
er for  any  outrage  committed  by  his  clerk  up- 
on a  customer;  the  merchant  for  the  like 
conduct  of  his  journeyman;  and,  indeed,  it 
would  be  equally  applicable  to  almost  every 
department  of  business  in  the  conduct  of 
which  it  is  necessary  or  convenient  to  em- 
ploy assistants  to  deal  with  the  public.  Even 
the  inn-keeper,  whose  cook  feloniously  min- 
gles poison  with  the  food  of  a  guest,  must 
then  respond  in  damages." 

In  Kleen  v.  Railroad  Co.,  37  Cal.  400,  the 
court  say:  "As  to  the  general  rule  upon  that 
subject  there  can  be  no  doubt.  If  the  act 
of  the  conductor,  in  pvdling  the  plaintiff  off 
the  cars  was  a  wanton  and  malicious  act, 
committed  out  of  the  course  of  his  agency, 
the  defendant  cannot  be  held  responsible  for 
the  manner  in  which  he  did  it,  unless,  how- 
ever, the  defendant  expressly  authorized  the 
act." 

In  the  case  of  The  Amiable  Nancy,  3  Wheat. 
54G,  which  was  a  suit  for  a  marine  trespass, 
Mr.  Justice  Story,  in  delivering  the  opinion 
of  the  court,  among  other  things  says:  "Up- 
on the  facts  disclosed  in  the  evidence,  this 
must  be  pronounced  a  case  of  gross  and 
wanton  outrage  without  any  just  provoca- 
tion or  excuse;  under  such  circumstances,  the 
honor  of  the  country  and  the  duty  of  the 
court  equally  require  that  a  just  compensa- 
tion should  be  made  to  the  unoffending  neu- 
trals for  all  the  injuries  and  losses  actually 
sustained  by  them.    And  if  this  were  a  suit 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


51 


against  the  oi-jginal  wrong-doors,  it  miglit  be 
proper  to  go  yet  further  and  visit  upon  tlieni, 
in  the  sliape  of  exemplary  damages  tlie  prop- 
er punishment  wliich  belongs  to  such  lawless 
misconduct.  But  it  is  to  be  considered  that 
this  is  a  suit  against  the  owners  of  a  priva- 
teer upon  whom  the  law  has,  from  motives  of 
policy,  devolved  a  responsibility  for  the  con- 
duct of  the  oilicers  and  crew  employed  by 
them,  and  yet  from  the  nature  of  the  service 
they  can  scarcely  ever  be  able  to  secure  to 
themselves  an  adequate  indemnity  in  cases 
of  loss.  They  are  innocent  of  the  demerit  of 
this  transaction,  having  neither  directed  it, 
nor  countenanced,  nor  participated  in  it  in 
the  slightest  degree.  Under  such  circum- 
stances, we  are  of  opinion  that  they  are 
bound  to  repair  all  real  injuries  and  personal 
wrongs  sustained  by  the  libellants,  but  tliey 
are  not  bound  to  the  extent  of  vindictive 
damages." 

In  Wardrobe  v.  Stage  Co.,  7  Cal.  US,  the 
jury  found  for  actual  and  exemplary  dam- 
ages in  the  sum  of  $2,500.  The  chief  jus- 
tice, in  delivering  the  opinion  of  the  court, 
quoted  with  approval  the  opinion  of  Judge 
Story  in  The  Amiable  Nancy,  and  said: 
"When  it  appears  that  the  coach  at  the  time 
of  the  accident  was  driven  by  a  servant  or 
agent  of  the  owner,  the  rule  in  such  case  is, 
that  the  principal  is  liable  only  for  simple 
negligence,  and  that  exemplary  damages  can- 
not be  enforced  against  him." 

In  the  case  of  Moody  v.  McDonald,  4  Cal. 
297,  the  facts  were  similar  to  the  above,  and 
In  the  action  brought  against  the  principal 
for  tortious  acts  of  his  servant,  where  the 
jury  gave  $2,500  damages,  and  .$2,500  smart- 
money,  the  court  disallowed  the  verdict  for 
the  smart-money,  holding  the  principal  liable 
only  for  compensatory  damages. 

In  McLellan  v.  Bank,  24  Me.  5G6,  the  court 
say:  "The  first  question  obviously  presented 
by  the  case  is,  can  a  corporation  aggregate 
be  chargeable  with  malice?  Such  coiiwra- 
tions  have  been  held  answerable  in  trover; 
and  might,  perhaps,  in  other  actions  sounding 
in  tort  for  all  acts  done  by  their  oflicers  un- 
der circumstances  implying  authority  to  do 
them.  But  it  may  well  be  doubted  if  such 
corporations  can  be  implicated  by  the  acts  of 
their  servants  in  transactions  in  which  mal- 
ice would  be  necessai-y  to  be  found  in  order 
to  the  sustaining  an  action  against  them 
therefor." 

Tvvo  cases  are  cited  by  Mr.  Justice  WAL- 
TON as  sustaining  the  rulings  of  the  presid- 
ing judge;  one  in  New  Hampshire,  and  one 
in  Mississippi. 

In  the  case  in  New  Hampshire  (Hopkins  v. 
Railroad  Co.,  36  N.  H.  1)  the  ruling  com- 
plained of  was,  "That  if  the  jury  should  lind 
the  defendants  guilty  of  gross  negligence  at 
the  time  of  the  collision,  and  the  plaintiff's 
injury  was  occasioned  by  such  negligence, 
they  might  in  their  discretion  give  exemplary 
-damages." 


"To  this  instruction  two  objections  are 
made: 

(1)  That  it  is  not  a  case  for  exemplary 
damages,  because  the  negligence,  which  is 
the  foundation  of  the  suit,  was  the  negligence 
of  the  defendant's  servants; 

(2)  Because  the  facts  of  the  case  disclose 
no  fraud,  malice,  violence,  cruelty,  or  the  like, 
nor  any  turpitude  or  moral  wrong." 

Upon  the  last  point,  the  court  hold  that 
"gross  carelessness  in  such  case  implies  a 
heedless  disregard  for  human  life,  and  for 
the  safety  of  passengers  who  intrust  them- 
selves to  the  care  of  the  road,  which  brings 
the  case  very  strongly  witiiin  the  rule  that 
the  wrong  complained  of,  to  wai'rant  exem- 
plary damages,  must  have  something  of  a 
criminal  character." 

In  relntion  to  the  first  objection  tlie  court 
say:  "The  defendants  are  a  corporation,  ahd 
can  act  in  no  way  but  by  their  officers, 
agents,  and  servants;  and  when  their  offi- 
cers, agents,  or  servants  act  within  the  scope 
of  their  authority  and  employment,  it  is  the 
act  of  the  coiiioration,  and  their  negligence 
is  the  negligence  of  the  corporation;"  and 
they  cite  Ang.  &  A.  Priv.  Corp,  386,  and 
Chestnut  Hill  Turnpike  v.  Rutter,  4  Serg.  Sc 
R.  6. 

It  will  be  noticed  that  the  learned  chi?f 
justice,  who  drew  this  opinion,  makes  only 
such  acts  of  the  agent,  as  are  authorized  by 
the  corporation,  their  acts.  It  is  such  as  are 
within  the  scope  of  their  authority  as  well 
as  employmeiat.  He  does  not  say  that  un- 
authorized acts  by  the  agent  become  the  acts 
of  the  principal.  His  proposition  conforms 
to  the  rules  which  we  have  befoi'e  deduced 
from  the  authorities.  A  recurrence  to  the  au- 
thorities, cited  by  him,  will  show  this.  Sec- 
tion 386,  Ang.  &A.  Priv.  Corp.,  which  is  cited, 
reads  as  follows:  "Yet  it  is  somewhat  re- 
markablethat  the  question  whether  an  action 
of  trespass  would  be  against  a  corporation 
should  not.  until  within  a  very  late  period, 
have  been  tJie  subject  of  express  judicial  de- 
cision. In  the  case  of  Maud  v.  Canal  Co.  it 
was  expressly  decided  by  the  English  court 
of  common  pleas,  in  1842,  that  trespass  will 
lie  against  a  corporation.  The  action  was 
brought  for  breaking  and  entering  locks  on 
a  canal,  and  seizing  and  carrying  away  bar- 
ges and  coal.  The  trespasses,  it  was  proveil, 
had  been  comijiitted  by  an  agent  of  the  com- 
pany, which  was  incorporated  by  an  act  of 
parliament,  and  the  barges  and  coal,  it  ap- 
peared, had  been  seized  for  tolls  claimed  to 
be  due  them.  The  only  question  being 
whether  trespass  would  lie  against  a  corpo- 
ration aggregate  for  an  act  done  by  tlieir 
agent  within  the  scope  of  their  authority. 
The  court  held,  that  when  it  is  established 
that  trover  will  lie  against  a  corporation, 
there  could  be  no  reason  why  trespass  should 
not  also  lie  against  them;  that  it  was  impos- 
sible to  see  any  distinction  between  the  two 
actions." 


52 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


This  section  which  is  cited  relates  alone  to 
the  question  whether  or  not  trespass  can  be 
maintained  when  the  act  done  was  Avithin 
the  scope  of  their  authority;  that  is  the  au- 
thority conferred  by  the  coiijoration,  and  it 
is  held,  when  the  act  is  done  by  the  author- 
ity of  the  corporation,  it  is  the  act  of  the  cor- 
poration, and  trespass  Avill  lie. 

The  next  section,  save  one,  which  follows 
(388)  says:  "It  is  of  importance,  however,  to 
be  observed,  that  an  action  of  trespass  can- 
not be  sustained  against  a  private  corpora- 
tion for  an  act  done  by  one  of  its  agents  un- 
less done  communicato  consiUo,  or.  in  other 
words,  unless  the  act  has  been  directed,  suf- 
fered, or  ratifled  by  the  corporation.  A  cor- 
poration is  liable  for  an  injury  done  by  one 
of  its  servants  in  the  same  manner  and  to 
the  same  extent  only  as  a  natural  individual 
would  be  liable  under  like  circumstances. 
The  well-known  rule  of  law  is,  that  if  the 
cause  of  an  injury  to  a  person  be  immediate, 
though  it  happens  accidentally,  the  author  of 
it  is  answerable  in  trespass  as  well  as  in 
case;  but  a  master,  whether  a  natural  indi- 
vidual or  an  artificial  one,  is  not  liable  for  a 
willful  act  of  trespass  of  his  servant." 

With  these  authorities  before  him  we  can- 
not well  suppose  he  meant  to  include  any 
unauthorized  act  of  the  agent.  He  was  too 
good  a  lawyer  to  say  that  an  act  done 
against  the  master's  orders  and  directions 
was  the  act  of  the  master.  Did  these,  how- 
ever, leave  us  in  doubt,  what  follows  upon 
the  same  page  of  his  opinion  would  seem  to 
put  the  matter  at  rest,  for  he  proceeds  to 
say:  "Corporations  may  be  sued  in  trespass 
for  the  authorized  acts  of  their  servants; 
and  if  the  trespass  is  committed  by  their  au- 
thority, with  circumstances  of  violence  and 
outrage  such  as  would  authorize  exemplary 
damages  against  an  individual  defendant,  it 
is  not  easy  to  discover  any  ground  for  a  dif- 
ferent rule  of  damages' against  the  corpora- 
tion which  the  law  charges  with  the  conse- 
quences of  the  act  as  the  responsible  party. 
If  a  coi-poration  like  this  is  guilty  of  an  act 
or  default  such  as,  in  case  of  an  individual, 
would  subject  him  to  exemplary  damages, 
we  think  the  same  rule  must  be  applied  to 
the  corporation." 

This  we  understand  to  be  in  harmony  with 
all  the  authorities,  and  comes  within  the 
first  class  of  cases  to  which  I  have  referred. 
The  act  is  theirs,  because  done  by  their  au- 
thority. Being  theirs,  tliey  are  held  as  would 
be  an  individual  defendant.  If  unauthor- 
ized, it  is  not  their  act,  although  they  may, 
upon  other  principles,  be  liable  to  compen- 
sate for  the  iujui-y  done. 

The  ground  upon  Avhich  exemplary  dam- 
ages is  allowed  is,  that  the  trespass  is  com- 
mitted by  their  authority  with  such  circum- 
stances of  violence  and  outrage  as  would  au- 
thorize exemplary  damages  against  an  indi- 
vidual defendant.  I  regard  the  law,  as  stat- 
ed by  the  chief  justice,  as  directly  sustain- 


ing the  views  that  I  present,  viz.:  that  to  be 
chargeable  with  the  animus  of  the  transac- 
tion, it  must  be  theirs  by  previous  authority, 
direct  or  implied,  or  subsequently  adopted  or 
ratified  by  them.  The  instruction  in  the 
court  below  required  the  defendants  to  be 
guilty  of  gross  negligence  to  subject  them  to 
exemplary  damages;  and  the  sum  total  of 
the  decision  was  that  this  was  right,  and 
that  if  the  act  was  done  by  the  authority  of 
the  defendants,  it  was  the  act  of  the  princi- 
pal. What  evidence  there  was,  if  any,  that 
the  defendants  participated  in  the  act  which 
produced  the  injury,  does  not  appear;  nor 
does  it  appear  that  the  jury  found  the  de- 
fendants were  guilty  of  gross  carelessness. 
All  the  remarks  of  the  chief  justice  are  made 
upon  the  hypothetical  case  of  an  injury  hap- 
pening through  the  gross  carelessness  of  the 
defendant  corporation. 

The  case  in  Mississippi  came  before  the 
court  on  a  motion  to  set  aside  the  verdict. 
The  discussion  in  the  opinion  is  upon  the  pro- 
priety and  authority  of  the  court  to  set  aside 
verdicts  on  account  of  the  amount  of  dam- 
ages in  those  cases  where  there  is  no  fixed 
rule  of  computation,  and  the  authorities  cit- 
ed are  almost  all  of  them  upon  this  point. 
There  was  no  ruling  excepted  to,  and  no 
question  of  law  presented.  Upon  the  matter 
of  punitive  damages,  referred  to  by  .Tudge 
Walton  in  his  opinion,  they  say:  "The  case 
is  much  stronger  for  the  defendant  in  error, 
than  were  the  facts  in  the  case  of  Heim  v» 
McCaughau,  32  Miss.  18.  The  decison  in  that 
case  was  conclusive  in  this,  as  to  the  form  of 
action  as  well  as  the  right  of  the  jury,  in  sucb 
cases,  to  protect  the  public,  by  punitive  dam- 
ages, against  the  negligence,  folly,  or  wick- 
edness Avhich  might  otherwise  convert  these 
great  public  blessings  into  the  most  danger- 
ous nuisances." 

It  will  be  perceived  that  this  case,  so  far 
as  any  consideration  of  punitive  damages 
was  concerned,  was  regarded  as  settled  by 
the  case  in  32  Miss. 

Looking  at  that  case  I  find  it  was  an  action 
brought  for  an  act  done  by  a  partner.  Heira 
with  others  were  owners  of  a  vessel.  Grant, 
one  of  the  owners,  was  the  captain.  The 
court  say,  by  Hand,  J.:  "There  was  testi- 
mony tending  to  show  that  the  captain  in. 
charge  of  the  boat,  which  was  published  to 
stop  at  Pascagoula  at  the  time  specified,  will- 
fully and  capriciously  disregarded  the  obli- 
gation incurred  by  the  publication,  and  that 
the  failure  occasioned  great  bodily  exposure, 
and  mental  suffering  and  disappointment  to 
the  plaintiffs  (now  defendants);  these  circum- 
stances were  properly  submitted  to  the  jury,, 
to  be  considered  by  them,  with  the  circum- 
stances of  excuse  or  extenuation  relied  upon 
by  the  defendants;  and  it  was  their  province 
to  determine  whether  there  was  such  fraud 
or  willful  neglect  of  duty  causing  oppression 
to  the  plaintiffs,  and  under  such  circumstan- 
ces of  aggravation  as  to  warrant  exemplary 


COMPENSATORY  AND  EXEMPIyARY  DAMAGES. 


damages.  This  was  the  substance  of  the  rul- 
ings of  the  court  upon  this  point,  and  wo  per- 
ceive no  eiTor  in  them." 

Tliis  is  the  case  which  decided  all  that  was 
said  in  '3G  Miss,  about  punitive  damages,  and 
Avas  an  action  brought  against  several  part- 
ners for  the  act  of  one  of  them.  The  value 
of  this  case,  in  support  of  the  principle  that 
a  railroad  corporation  may  be  i)unished  for 
the  malice  of  an  employee,  cannot,  I  think, 
be  considered  great,  especially  when,  in  the 
case  in  the  oGth,  we  find  this  remark:  "It 
is  not  enough  that,  in  the  opinion  of  the 
court,  the  damages  are  too  high.  It  maj'  not, 
rightfully,  substitute  its  own  sense  of  what 
would  be  a  reasonable  compensation  for  the 
injury,  for  that  of  the  jury."  Since  the  opin- 
ion in  this  case  was  drawn,  and  since  writ- 
ing this  opinion,  my  attention  has  been  di- 
rected by  Mr.  Justice  WALTON  to  the  case 
of  Railroad  Co.  v.  Blocher,  27  Md.  277,  as 
a  case  sustaining  the  ruling  of  the  court  in 
the  case  at  bar. 

Upon  an  examination  of  that  case,  it  will  be 
found  that  a  difficidty  arose  between  the  con- 
<luctor  of  train  upon  the  appellant's  road  and 
appellee  about  his  ticket;  the  one  contend- 
ing it  had  been  surrendered  to  the  conductor, 
and  the  other  averring  it  had  not,  and  to 
prevent  being  put  off  the  train,  the  appellee 
paid  his  ftire;  it  subsequently  appeared  that 
he  was  right,  and  properly  surrendered  his 
ticket  when  called  upon  so  to  do.  He  alleged 
that  the  conduct  of  the  conductor  was  vio- 
lent and  insulting. 

At  the  trial  of  the  case,  the  appellants  re- 
quested the  court  to  instruct  the  jury  as 
follows: 

"(7)  If  the  jury  believe  the  conductor 
caught  the  appellee  violently,  etc.,  by  the 
collar  and  dragged  him  from  his  seat,  while 
a  passenger  in  the  train,  the  appellee  is  not 
entitled  to  recover  for  the  same  in  this  action 
against  the  appellants,  unless  they  believe 
the  appellants  authorized  the  act.  and  adopt- 
ed and  justified  it  since  its  committal. 

"(8)  That  if  the  jury  believe  the  conductor 
wrongfully  extorted  from  the  appellee  the 
fare  from  Martinsburg  to  Baltimore,  after 
the  appellee  had  surrendered  his  ticket,  etc., 
the  apijellee  was  not  entitled  to  recover  vin- 
dictive or  punitive  damages  from  the  appel- 
lants, unless  they  expressly  or  impliedly  par- 
ticipated in  the  tortious  act  authorizing  it  be- 
fore, or  approving  it  after,  it  was  com- 
mitted." 

Concerning  these  two  requests,  the  court 
«ay:  "The  conductors  and  employees  of  the 
corporation  represent  them  in  the  di-scharge 
of  these  functions,  and  being  in  the  line  of 
their  duty  in  collecting  the  fare  or  taking  up 
tickets,  the  corporation  is  liable  for  any 
abuse  of  their  authority,  whether  of  omission 
or  commission.  Vide  Redf.  R.  R.  381,  note 
t),  and  authorities  there  cited.  The  court 
was,  therefore,  right  in  rejecting  so  much  of 
the  defendants'  prayers,  as  limited  their  lia- 


bility to  such  tortious  acts  of  their  agents  as 
they  had  either  personally  authorized  or  sub- 
sequently approved." 

The  seventli  and  eighth  prayers,  requiring 
the  plaintiff  to  prove  eitlior  previous  autlior- 
ity  or  subsequent  approval  of  the  acts  of  the 
conductor  to  render  the  defendant  liable, 
were  rejected  for  reasons  before  assigned 
(those  above  copied).  "The  prayer  of  the  ap- 
pellee claims  compensation'for  injury  to  his 
feelings  and  degradation  of  character.  The 
appellant's  eighth  prayer  affirms  he  is  not 
entitled  to  recover  vindictive  or  punitory 
damages  against  the  company,  uule.ss  they 
expressly  or  impliedly  participated  in  the 
tort,  by  authoTizing  it  before,  or  approving  it 
after.  We  have  already  declared  our  opinion 
on  the  latter  branch  of  this  proposition. 
This  court,  in  the  case  of  Gaither  v.  Blowers, 
11  Md.  5.~)2.,  said,  that  v»here  tlie  injuiy  was 
accompanied  with  force  or  malice,  the  in- 
jured party  might  recover  exemplary  dam- 
ages. The  action  being  vi  et  armis,  or  in 
that  character,  the  jury  were  authorized  to 
give  whatever  damages  the  evidence  showed 
the  immediate  conse'quence  of  the  wrong 
warranted,  and  which  necessarily  resulted 
from  the  act  complained  of.  2  Greenl.  Ev. 
§§  89,  254;  McNamara  v.  King,  2  Oilman, 
436;    McTavish  v.  Cai-roll,  13  :Md.  439." 

This  is  all  that  is  said  upon  this  question. 
I  have  quoted  the  requested  instructions,  and 
the  remarks  of  the  court  upon  them.  The 
conclusion  of  the  court,  and  the  law  of  that 
case,  is  found  in  these  words:  "The  action 
being  vi  et  armis,  or  in  that  character,  the 
jury  were  authorized  to  give  whatever  dam- 
ages the  evidence  showed  the  immediate 
consequences  of  the  wrong  warranted,  and 
which  necessarily  resulted  from  the  act  com- 
plained of." 

A  careful  examination  of  that  case  will  dis- 
close the  fact  that  the  question  of  damage 
raised  and  decided,  was  whether  the  plain- 
tiff had  a  right  in  such  case  to  recover  "for 
injury  to  his  feelings,  and  degradation  of 
character."'  This  Avas  the  prayer  of  the  ap- 
pellee, and  he  asked  no  more,  and  no  other 
instruction  was  given.  These  were  treated 
as  exemplary  damages  bj'  the  appellants,  and 
they  sought,  by  their  request,  to  limit  the 
damages  to  the  actual  physical  and  pecunia- 
ry injuries.  An  examination  of  the  authori- 
ties cited  by  the  court  in  their  opinion  will 
lead  to  the  conclusion  that  they  regarded 
that  as  the  question,  and  considered  such 
damages  exemplary  damages.  They  cite  Mr. 
Greenleaf  for  the  rule  they  lay  down,  and  I 
hazard  the  opinion  that  Mr.  Greenleaf  never 
expected  to  be  quoted  as  an  authority  for 
punitive  damages  in  civil  actions.  (See  his 
note  to  section  253,  volume  2,  on  Evidence.) 
The  case  of  Gaither  v.  Blowers,  referred  to, 
goes  no  further  than  Mr.  Greenleaf,  and  his 
language,  totidem  verbis,  is  used  as  the  au- 
thority for  the  doctrine  advanced. 

Mr.    Greenleaf,    in    the    note   referred   to, 


54 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


sijeaking  of  the  term  "exemplary  damages," 
as  used  by  the  courts  iu  a  case  he  is  review- 
ing, says:  "From  this  and  other  expressions 
it  may  well  be  inferred,  that  by  actual  dam- 
ages the  court  meant  those  which  were  sus- 
ceptible of  computation,  and  that  by  exem- 
plary damages  or  smart-money  they  intended 
those  damages  which  were  given  to  the  plain- 
tiff for  the  circumstances  of  aggravation  at- 
tending the  injury  he  had  received,  and  go- 
ing to  enhance  its  amount,  but  which  were 
left  to  the  discretion  of  the  .iury,  not  being 
susceptible  of  any  other  rule." 

The  rulings,  in  the  case  at  bar,  covered  all 
these  intangible  matters  before  reaching  the 
point  of  punishing  the  defendant  corporation. 
They  had  been  told  "to  consider  the  injury  to 
his  feelings,  his  wounded  pride,  his  wounded 
self-respect,  his  mental  pain  and  suffering  oc- 
casioned by  the  assault,  and  the  feeling  of 
degradation  that  necessarily  resulted  from  it." 
This  was  going  as  far  as  the  court  in  Mary- 
land went  or  was  asked  to  go,  and  does  not 
reach  the  ground  of  complaint  in  the  case  at 
bar.  I  find  no  evidence  in  it  of  a  design  to  go 
beyond  this;  the  rale  was  declared  in  plain 
terms  to  be  such  damages  as  "the  evidence 
showed  the  immediate  consequence  of  the 
wrong  warranted,  and  which  necessarily  re- 
sulted from  the  act  complained  of."  This 
certainly  does  not  include  damages  by  way 
of  punishing  the  defendants.  Such  damages 
would  not  be  the  immediate  consequence  of 
the  wrong,  and  necessarily  resulting  from  it. 

Some  comment  is  made  concerning  the  re- 
tention of  Jackson  iu  the  defendant's  em- 
ploy. All  that  I  find,  in  the  report  of  the 
case  concerning  the  matter,  is  a  statement, 
made  by  the  plaintiff'  in  his  testimony,  that 
he  had  seen  him  several  times  since,  in  per- 
formance of  duties  upon  the  train. 

So  far  as  any  question  arises  upon  the  rule 
of  damages  laid  down  in  the  instruction,  it  is 
quite  apparent  this  is  perfectly  immaterial, 
and  could  be  regarded,  in  any  event,  only  as 
remote  evidence  of  ratification.  If  he  was 
retained  in  their  employ,  we  do  not  know  un- 
der what  circumstances;  possibly  they  were 
such  as  would  have  furnished  to  the  mind  of 
any  reasonable  man  a  perfect  justification; 
sitting  here.  Ave  must  take  the  report  as  we 
find  it.  The  opinion  states  that  the  jury  un- 
doubtedly regarded  it  as  "a  practical  ratifi- 
cation and  approval  of  his  conduct."  Could 
they  have  done  so  if  they  had  been  correctly 
instructed  in  the  theory  now  advanced? 
What  was  there  to  ratify?  Yea,  more,  who 
vv-as  there  to  ratify?  If  the  servant  is  the 
corporation,  and  the  act  of  commission  was 
the  act  of  the  corporation,  was  there  any- 
thing to  ratify?  Was  it  not  an  original  act 
of  the  corporation?  Did  they  ratify  their 
own  act?  If  the  act  of  commission  was  orig- 
inally theirs,  the  act  of  retention  was  a  sub- 
sequent act,  having  no  relation  to  the  first. 
Did  that  infringe  any  right  of  his?  If  it 
did,  it  was  a  new  and  .substantive  cause  of 


conipaint  not  embraced  in  this  declaration. 
If,  however,  the  theory  which  is  now  ad- 
vanced is  not  only  novel  but  unsound,  and 
that  previous  command  or  subsequeut  ap- 
proval was  necessary  to  warrant  the  inflic- 
tion of  punishment,  the  matter  was  of  vital 
importance,  and  the  defendants  should  have 
had  the  advantage  of  the  instruction.  It  is 
not  quite  right,  I  think,  to  now  assume  that 
the  jury  regarded  it  as  a  ratification.  Possi- 
bly the  gentlemen  composing  that  jury  were 
not  quite  prepared  to  find  that  the  gentle- 
men composing  the  administrative  and  ex- 
ecutive departments  of  that  corporation  were 
so  lost  to  all  that  is  decent  and  honorable 
among  men,  and  so  blind  to  their  own  inter- 
ests that  thej'  would  justify  an  act  con- 
demned by  everybody.  Giving  full  force  to 
the  encomiums  bestowed  in  the  opinion  upon 
juries,  might  we  not  conclude  that  they 
would  be  more  likely  to  infer,  from  the  cir- 
cumstances, that  such  amends  had  been  made 
as  honorable  gentlemen  would  require,  rather 
than  convict  them  of  an  act  that  any  i^rison 
convict  would  cry  out  against? 

Will  it  do  to  shield  the  verdict  with  that 
which  the  jury  were  substantially  told  was 
immaterial? 

I  have  not  considered  this  case  upon  the 
motion,  or  upon  any  facts  supposed  to  be 
proved  by  the  evidence  reported,  Hor  have  I 
considered  the  question  whether,  under  the 
plaintiff's  declaration,  he  can  recover  upon 
the  grounds  set  forth  in  the  opinion.  I  have 
only  considered  the  rule  advanced  by  the  in- 
structions. Under  this  rule  a  railroad  corpo- 
ration may  exercise  all  possible  care  in  the 
selection  of  servants,  and  strictly  enjoin  them 
from  day  to  day  against  any  irregularity  of 
conduct;  yet  if  one  of  them,  unmindful  of 
his  duty,  regardless  of  his  master's  interest, 
and  bent  on  exercising  some  private  malice 
against  a  person  who  happened  to  be  a  trav- 
eler, assaults  him,  the  corporation  must  not 
only  make  full  compensation  for  all  the  in- 
jury, under  the  most  liberal  rules,  but  may 
be  punished  for  an  act  they  have  used  every 
endeavor  within  the  reach  of  human  power 
to  prevent.  One  committed  by  another, 
against  their  wishes,  interest,  and  positive 
commands;  and  it  is  to  be  such  a  punish- 
ment as  will  "serve  as  a  warning  and  exam- 
ple to  others." 

If  we  were  punishing  the  actor  himself,  we 
should  consider  the  probable  effect  of  a  given 
punishment  upon  him;  but  when,  for  his  of- 
fense, we  punish  another,  how  can  we  form 
any  idea  of  the  influence  of  a  punishment  he 
cannot  feel.  The  master  may  discharge  him 
from  his  employment,  and  he  thus  feel  the 
punishment  another  suffei's  indirectly,  and  to 
that  extent.  It  will  be  perceived,  however, 
that  this  is  the  extent  for  all  classes,  kinds, 
and  degrees  of  offense.  It  is  the  only  chan- 
nel through  which  he  can  be  made  to  feel  it. 
But  suppose  it  were  otherwise,  is  the  punish- 
ment  which   is   inflicted   upon  the   innocent 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


55 


party  any  the  less  kc'en,  unjust,  aucl  ouei'ous? 

Is  that  in  any  degree  affected  by  the  man- 
ner in  which  the  ofl'ender  receives  the  intelli- 
gence of  its  infliction  upon  another?  Again; 
how  shall  the  corporation  avoid  the  constant 
recurrence  of  penalties  for  the  offenses  of 
others?  Can  thoy,  when  they  select  another 
servant,  exercise  any  more  care  or  be  more 
Avatchful  over  him?  Can  they  change  the 
passions  of  men?  What  is  their  fault  if  they 
have  exercised  all  the  care,  Avisdora,  and  pru- 
dence Avith  Avliich  men  are  invested.?  Must 
they  be  punished  for  not  being  omnipotent? 

If  the  idea  and  design  of  punishment  is  to 
restrain  the  offender  and  make  the  punish- 
ment serve  as  a  warning  to  others,  how  can 
it  better  be  done  than  by  making  it  personal; 
inflicting  it  upon  the  ott'ender?  Hoav  can  its 
influence  upon  others  be  made  more  restrain- 
ing than  by  the  reflection  that  they  must  per- 
sonally suffer  the  same  punishment  if  they 
offend?  Is  the  reflection  that  others  will  suf- 
fer it,  more  potent  with  that  class  of  individ- 
uals? Has  the  observation  of  men  led  to 
this  conclusion?  And  if  it  has,  have  all  the 
principles  of  reason,  right,  and  justice  yield- 
ed to  it  and  made  it  right? 

If  the  punishment,  thus  inflicted,  is  to  serve 
as  a  warning  to  others,  who  must  take  warn- 
ing? Evidently  the  innocent  as  well  as  guilty. 
The  innocent  are  to  be  the  greatest  suffer- 
ers by  reason  of  the,  oft'ense,  and  punished 
alone  directly.  It  is  to  serve  as  a  warning 
to  all  innocent  persons,  that  thej'  may  be  pun- 
ished for  the  offenses  of  otbcrs,  after  having 
fully  compensated  the  injury  done. 

One  other  consideration  I  barely  suggest. 
The  liability  in  this  case  is  based  upon  a  con- 
ti'act;  purely  so.  No  liability  could,  under 
the  proof,  arise  by  the  rules  of  law  applica- 
ble to  master  and  sei'vant.  Had  the  plaintiff 
been  a  stranger  to  the  defendants,  and  had  no 
claims  upon  them,  except  such  as  each  citizen 
owes  to  the  other,  no  liability  of  any  kind 
would  have  attached  to  these  defendants  for 
the  willful  trespass  of  their  servant.  Not 
only  would  they  be  saved  punishment,  but 
compensation  even.  Now  it  being  a  case 
whore  no  liabilitj'  would  attach,  but  for  the 
contract,  and  the  liability  which  does  attach 
being  for  breach  of  contract,  the  rule  in  this 


case  is  not  only  punisliing  one  for  the  act  of 
another,  but  it  is  doing  this  in  an  action  ex 
contractu,  for  this  declaration  must  be  con- 
strued to  be  such  to  meet  the  law  of  the  opin- 
ion. 

All  consideration  of  the  matter  tends  to 
sriiow  the  fundamental  error  in  holding  an  in- 
nocent party  liable  to  punishment.  In  all 
these  acts,  done  by  the  command  of  the 
principal  (whether  the  authority  appears  by 
direct  command  or  by  fair  implication  from 
the  proceedings  of  the  party  charged),  there 
is  propriety  in  punishing  if  the  act  be  Avrong 
and  an  infraction  of  the  moral  code;  but 
in  those  cases  where  the  act  is  unauthor- 
ized, and  the  principal  is  in  nowise  con- 
nected with  the  animus  of  the  actor,  aud 
becomes  liable  to  compensate  upon  grounds 
other  than  that  the  act  was  done  by  his 
command,  it  appears  to  me  that  all  punish- 
ment inflicted,  or  rather  all  suffering  impos- 
ed under  the  name  of  punishment,  is  flag- 
rant injustice;  it  is  not  punishment,  for  it 
has  not  its  necessary  antecedent,  wrong:  bor.h 
reason  and  authority  are  opposed  to  it,  and 
no  case  can  be  found,  where  the  question  has 
been  presented  and  discussed,  in  which  such 
doctrines  are  not  denounced  as  unsound  and 
unjust.  In  addition  to  the  cases  which  I 
have  cited,  there  is  the  pregnant  fact  that 
no  case  can  be  found  in  Massachusetts  or 
New  York  where  it  has  ever  had  any  sanc- 
tion, even  in  the  inferior  courts;  and  no  case 
can  be  found,  that  I  am  aware  of,  where  any 
party  has  sought  to  establish  any  such  rule 
by  an  appeal  to  the  superior  courts  or  courts 
of  last  resort  in  those  states.  Yet  these 
states  are  a  net-work  of  railroads,  an«i  ques- 
tions of  liability  ai"e  constantly  arising  and 
being,  settled  by  the  courts  of  those  states. 
It  appears  to  me  the  fact  has  some  signifl- 
cance. 

The  rule  established  in  this  case  Is  so  im- 
portant, and  fraught  with  such  results  under 
the  ordinary  modes  of  administering  law, 
that  I  have  felt  impelled  to  enter  my  dissent 
at  length,  and  regret  that  the  pressure  of 
other  duties  has  prevented  me  from  giving 
a  more  extended  examination  of  the  authori- 
ties, and  the  compression  of  them  and  my 
own  views  into  a  naiTower  compass. 


56 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


WHEELER  &  WILSON  MANUF'G  CO,  et 
al.  V.  BOYCE. 

(13   Pac.    609,   36  Kan.   350.) 

Supreme  Court  of  Kansas.    April  8,  1887. 

Error  from  Shawuee  county. 

Waters  &  Ensininger,  for  plaintiffs  in  er- 
ror.    G.  N.  Elliott,  for  defendant  in  error. 

JOHNSTON,  J.  This  is  a  proceeding  to 
reverse  a  judgment  rendered  in  an  action 
for  false  imprisonment,  brought  by  Jacob  F. 
Boyce  against  the  Wheeler  &  Wilson  Manu- 
facturing Company,  C.  S.  Baker,  and  J.  W. 
Hughes.  Hughes  was  dismissed  from  the 
action,  and  the  .ludgment  went  only  against 
the  plaintiffs  in  error.  The  facts  upon  which 
the  case  M'as  disposed  of  are  substantially 
these:  The  Wheeler  &  Wilson  Manufactur- 
ing Company,  a  corporation  organized  for 
the  manufacture  and  sale  of  sewing-ma- 
chines^ was  engaged  in  business  at  Topeka, 
Kansas,  and  C.  S.  Baker  was  its  general 
agent  at  that  place.  The  company  had  sold 
a  sewing-machine  to  Mary  Hatfield,  who 
subsequently  married  Jacob  F.  Boyce,  the 
defendant  in  error.  She  paid  a  part  of  the 
purchase  mouej^  and  signed  a  contract,  in 
substance  that  the  title  to  the  machine 
should  remain  in  the  company  until  the  bal- 
ance of  the  purchase  money  was  paid.  In 
November,  1881,  the  company  directed  its 
general  agent  to  bring  an  action  of  replevin 
against  Mary  Boyce  to  recover  the  machine, 
claiming  that  there  was  a  balance  due  there- 
on, a  claim  which  she  denied.  An  action 
of  replevin  was  begun  before  a  justice  of 
the  peace,  and  a  writ  was  issued  and  placed 
in  the  hands  of  Constable  Hughes,  who  re- 
ported that  he  had  made  search  for  the  ma- 
chine, and  was  unable  to  obtain  possession 
of  it.  C.  S.  Baker,  the  agent  of  the  com- 
pany, then  directed  Hughes  to  make  and  file 
an  affidavit  before  the  justice  of  the  peace, 
alleging  that  Mary  Boyce  and  her  husband, 
Jacob  F.  Boyce,  were  in  possession  of  the 
machine,  and  had  refused  to  deliver  it  to 
him,  and  thus  obtain  a  warrant  for  their  ar 
rest  This  was  done,  and  the  justice  issued 
a  warrant  to  the  constable  commanding  him 
to  arrest  Boyce  and  his  wife,  and  commit 
them  to  the  Shawnee  county  jail,  there  to 
remain  until  they  should  deliver  the  ma- 
chine. Under  this  warrant,  Jacob  F.  Boyce 
was  arrested  and  placed  in  jail  without  be- 
ing taken  before  the  justice,  and  without 
any  examination,  hearing,  or  trial.  The  con- 
stable informed  the  general  agent  of  the 
company  that  he  had  arrested  Boyce,  and 
placed  him  in  the  county  jail  as  requested, 
and  Baker  replied:  "Now,  I  guess  he  will 
give  up  the  machine."  The  replevin  action 
resulted  in  a  judgment  in  favor  of  INIary 
Boyce.  Jacob  F.  Boyce  was  held  in  the 
county  jail  for  10  days,  and  was  never 
taken  before  any  court  or  officer  for  exam- 
ination or  trial,  and   was  finally  discharged 


at  the  instance  of  the  plaintiffs  in  error,  and 
he  became  sick  in  consequence  of  his  con- 
finement. He  at  once  instituted  this  action, 
and  the  jury  awarded  him  damages  in  the 
sum  of  $1,000,  and  the  verdict  was  approved 
by  the  trial  court. 

The  plaintiffs  in  error  complain  chiefly  of  the 
rulings  of  the  court  in  the  matter  of  charging 
the  jury.  The  jury  were  instructed  that,  if  the 
evidence  justified  it,  they  could  find  exemplary 
damages  or  smart-money  against  the  defend- 
ants. After  the  jury  had  been  out  some 
time,  and  had  practically  agreed  upon  their 
verdict,  the  court  recalled  them,  and  advis- 
ed them  that  he  was-  in  error  in  giving  the 
instruction  that  they  might  in  their  discre- 
tion assess  exemplary  damages,  and  with- 
drew it  from  the  jury,  telling  them  that  in 
their  deliberations  they  should  not  consider 
the  instruction  withdrawn.  Objection  was 
made  to  the  withdrawal  of  the  instruction, 
and  an  application  of  plaintiffs  in  error  for 
leave  to  address  the  jviry  after  the  rwodifica- 
tion  had  been  made  was  denied,  and  this 
ruling  is  assigned  as  error.  This  decision 
afiiords  the  plaintiffs  in  error  no  ground  for 
complaint.  The  action  of  the  court  was  fa- 
vorable rather  than  prejudicial  to  their  in- 
terests. The  instructiou  given  was  predi- 
cated upon  suflicient  facts,  was  warranted 
under  the  law,  and  the  defendant  in  error 
alone  had  reason  to  complain  of  its  with- 
drawal. It  is  a  well-established  principle  of 
jurisprudence  that  corporations  may  be  held 
liable  for  torts  involving  a  wrong  inten- 
tion, such  as  false  imprisonment;  and  ex- 
emplary damages  may  be  recovered  against 
them  for  the  wrongful  acts  of  their  serv- 
ants and  agents  done  in  the  course  of  their 
employment,  in  all  cases  and  to  the  same  ex- 
tent that  natural  persons  committing  like 
wrongs  would  be  held  liable.  In  such  cases 
the  malice  and  fraud  of  the  authorized 
agents  are  imputable  to  the  corporations  for 
which  they  acted.  This  principle  is  too  well 
settled  to  require  argument,  and  the  authori- 
ties sustaining  it  are  numerous  and  well- 
nigh  unanimous.  Railroad  Co.  v.  Slusser, 
19  Ohio  St.  157;  Railroad  Co.  v.  Dunn,  19 
Ohio  St.  102;  Goddard  v.  Railway,  57  Me. 
202;  Railroad  Co.  v.  Quigley,  21  How.  213; 
Railroad  Co.  v.  Arms,  91  U.  S.  489;  RaU- 
rcad  Co.  v.  Bailey,  40  Miss.  395;  Railroad 
Co.  V.  Blocher.  27  Md.  277;  Hopkins  v.  Rail- 
road Co.,  36  N.  H.  9;  Railroad  Co.  v.  Ham- 
mer, 72  111.  353;  Reed  v.  Bank,  130  Mass. 
443;  Fenton  v.  Machine  Co.,  9  Phila.  189; 
Goodspeed  v.  Bank,  22  Conn.  530;  Boogher 
v.  Association,  75  Mo.  319;  Wheless  v.  Bank, 
1  Baxt.  469;  Jordan  v.  Railroad  Co.,  74 
Ala.  85;  Williams  v.  Insurance  Co.,  57  Miss. 
759;  Vance  v.  Railway  Co.,  32  N.  J.  Law, 
334;  Cooley,  Torts,  119;  3  Suth.  Dam.  270, 
and  cases  cited;  2  Wait,  Act.  &  Def.  447, 
and  cases  cited.  The  same  doctrine  has 
been  fully  recognized  on  several  occasions  by 
this  court.  Railroad  Co.  v.  Rice,  10  Kan. 
437;    Railway   Co.  v.  Weaver,   16  Kan.   456; 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


57 


Railway  Co.  v.  Kessler,  IS  Kan.  523;  Rail- 
way Co.  V.  Little,  19  Kan.  209;  News  Co.  v. 
"Wllmarth,  33  Kan.  510,  0  Pac.  TSG.  Tlie 
withdrawal  of  the  instruction,  although  er- 
roneous, Avas  beneficial  to  the  plaintiffs  in  er- 
ror, and  there  can  be  no  reversal  unless  the 
erroneous  ruling  is  injurious  to  the  party 
complaining. 

It  is  next  contended  that  the  company  can- 
not be  held  liable  for  the  wrongful  acts  of 
Baker  and  the  constable,  and  an  iustruction 
is  challenged  which  holds  that,  if  the  agent 
of  the  company  caused  and  procured  the  ille- 
gal arrest  and  detention  of  the  defendant  in 
error  as  charged,  the  company  and  its  agents 
were  both  liable.     Baker  was  the  managing 
a,gent  of  the  company;    his  authority   was 
general,  and  the  constable  acted  wholly  un- 
<Jer  his  direction  and  sanction.     He  had  not 
only  authority  to  sell  machines,  and  collect 
the  money  due  for  the  same,  but  it  is  con- 
ceded tlaat  he  had  authority  to  institute  le- 
gal proceedings  to  recover  possession  of  the 
machines  conditionally  sold,  and  for  which 
jiayment  had  not  been  made  in  accordance 
with  the  terms  of  sale.     The  arrest  and  de- 
tention of  Boyce  was  incidental  to  the  re- 
plevin action,  and  was  made,  as  alleged,  to 
compel  the  delivery  of  the  machine  under  a 
provision  of  the  Justices'   Code  relating  to 
replevin,  which  provides  that  where  the  de- 
fendants,  or  any  other  persons,  knowingly 
conceal  the  property  replevied,  or,  having  the 
control  thereof,  refuse  to  deliver  the  same 
to  the  oflicer,  tliey  may  be  committed  until 
they  disclose  where  the  property  is,  or  de- 
liver the  same  to  the  officer.     Comp.  Laws 
3879,  c.  81,  §  09.     He  had  fidl  authority  to 
represent  the  company,  and  whatever  was 
dene  by  him  was  done  for  the  benefit  of  the 
company,  and  for  the  accomplishment  of  its 
pui-pose.    His  act,  although  wrongful,  was  in 
the  line  of  his  employment,  was  done  in  the 
execution   of   the   authority  conferred   upon 
him,  and  must  be  regarded  as  the  act  of  the 
company.     To  make  the  coii^oration  respon- 
sible, it  is  not  necessary,  as  plaintiffs  in  er- 
ror contend,  that  the  principal  should  have 
directly  authorized  the  particular  wrongful 
act  of  the  agent,  or  should  have  subsequently 
ratified  it.     Judge  Story,  in  treating  of  the 
liability  of  principals  for  the  acts  of  their 
agents,  says  that  "the  principal  is  held  liable 
to  third  persons  in  a  civil  suit  for  the  frauds, 
deceits,     concealments,      misrepresentations, 
torts,  negligences,  and  other  malfeasances  or 
misfeasances  and  omissions  of  duty  of  his 
agent  in  the  course  of  his  employment,  al- 
though the  principal  did  not  authorize  or  jus- 
tify or  participate  in,  or,   indeed,   know  of 
such  misconduct,  or  even  if  he  forbade  or 
disapproved  of  them,"  and  to  sustain  this  he 
cites    numerous    authorities.     "In    all    such 
cases,"  he  says,  "the  rule  applies,  respondeat 
superior,  and  it  is  founded  upon  public  policy 
and  convenience,  for  in  no  other  way  could 
there  be  any  safety  to  third  persons  in  their 
dealings,  either  directly  witli  the  principal, 


or  indirectly  with  him  through  the  instini- 
mcutality  of  agents."     Story,  Ag.  §  452. 

They  complain,  further,  of  an  instruction 
in  which  the  court  stated  that  the  wairant 
under  which  Boyce  was  taken  and  held  in 
custody  was  illegal  and  void,  and  insufficient 
in  law  to  justify  his  arrest  and  imprison- 
ment.    The  warrant,  as  we  have  seen,  was 
issued  upon  an  aflidavit  charging  Boyce  with 
having  control  of  the  property  replevied,  and 
of  refusing  to  deliver  it  to  the  officer  who 
had  the  writ.     There  Avas  no  process  issued 
except  the  warrant,  and  it  commanded  that 
he  be  committed  at  once  to  the  county  jail 
until  he  should  deliver  the  property  to  the 
officer.     No  notice  Avas  given  to  him  that  the 
charge  stated  in  the  affidavit  had  been  made 
against  him,  nor  was  an  opportunity  given 
him  to  refute  it.     The  order  of  commitment 
Avas  not  based  upon  any  examination,  hear- 
ing, or  trial,  but   Avas  arbitrarily  made,  in 
the  absence  of  Boyce,  upon  ex  parte  state- 
ment.   The  plaintiffs  in  error  attempt  to  jus- 
tify  this   action,    though    not   seriously,    Ave 
think,  under  section  09  of  the  Justices'  Code, 
already  referred  to,  Avhich  reads  as  follows: 
"Whenever  it  shall  be  made  to  appear,  to  the 
satisfaction  of  the  justice,  by  the  affidavit 
of  the  plaintiff  or  otherAvise,  that  the  defend- 
ant, or  any  other  person,  knowingly  conceals 
the  property  sought  to  be  recovered,  or,  hav- 
ing  control  thereof,   refuses  to  deliver  the 
same  to  the  officer,  the  justice  may  commit 
such  defendant  or  other  person  until  ho  or 
they  disclose  where  such  property  is,  or  de- 
liver the  same  to  the  officer."     The  proceed- 
ing authorized  by  this  statute  is  virtually  one 
for  the  punishment  of  contempt.     Whether 
a  party  is  to  be  brought  before  the  justice 
of  the  peace  upon  a  notice  or  by  attachment, 
or  what  the  initial  proceeding  shall  be,  is  not 
expressly  provided.     The  section  quoted  does 
provide  Avhat  punishment  shall  finally  be  vis- 
ited upon  a  party;    but  this  punishment  is 
not  to  be  administered  until  the  guilt  of  the 
party  is  "made  to  appear  to  the  satisfaction 
of  the  justice."     This  language  implies  that 
there  is  to  be  a  hearing  and  an  adjudication 
of  the  charge  upon  its  merits.     When  a  con- 
tempt is  committed  in  facie  curiae,  the  pun- 
ishment is  generally  summai-y,  and  no  ini- 
tial proceeding  is  i-equired;    but,  when  it  is 
not  committed  in  the  view  of  the  court,  the 
initial  proceedings  are    necessary,  and    the 
party  must  have  notice  and  opportunity  to 
defend.     The  most  common  initial  process 
is  a  rule  or  order  to  show  cause  why  an  at- 
tachment or  warrant  for  contempt  should  not 
issue,  of  Avhich  service  should  be  made;  and, 
in  a  proceeding  to  punish  for  criminal  con- 
tempt, personal  notice  of  the  accusation  is 
indispensable.     Whatever  procedure  may  be 
adopted,  it  is  certain  that  a  party  cannot  be 
condemned  without  notice;  and  a  final  judg- 
ment i-endered,   as  was   done  in  this   case, 
without  a  hearing  or  an  opportunity  to  de- 
fend, is  void.     Rap.  Contempt,  §  90.     While 
the  language  of  the  statute  is  not  very  ex- 


58 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


plicit,  it  does  not  require  the  interpretation 
contended  for,  and,  if  it  did,  it  would  neces- 
sarily be  held  void. 

The  final  error  assigned  Is  that  the  dam- 
ages awarded  are  excessive.  This  assign- 
ment is  as  groundless  as  those  already  con- 
sidered. The  case  is  an  aggravated  one,  and 
the  conduct  of  the  plaintiffs  in  error  exhibit- 
ed a  wanton  and  reckless  disregard  of  the 
rights  of  the  defendant  in  error.  He  was 
not  a  irnrty  to  the  replevin  action,  and  the 
testimony  is  that  the  machine  in  controversy 
was  purchased  long  before  he  was  married 
to  the  plaintiff  in  that  action,  and  that  he 
had  no  interest  in  or  control  over  it.  He  was 
thrust  into  jail,  without  warning  or  trial, 
when  there  was  no'  civil  or  criminal  suit 
pending  against  him,  and  kept  there  for  10 
days  witli  17  or  18  prisoners  who  were  ei- 
ther charged  with  or  convicted  of  crimes. 
The  sewing-machine  sought  to  be  recovered 
from  his  wife  had  been  paid  for,  and  belong- 
ed absolutely  to  her;  and  plaintiffs  in  error, 
with  knowledge  of  this  fact,  undertook  to 


compel  the  payment  of  money  not  due,  or 
the  recovery  of  property  which  they  did  not 
own,  by  the  arrest  and  incarceration  of  the 
defendant  in  error,  without  cause,  and  in  a 
manner  that  Avas  clearly  illegal.  Apart  from 
the  loss  of  time  and  interruption  to  his  busi- 
ness, as  well  as  the  humiliation  and  indigni- 
ty sulfered  by  him  by  being  thrust  into  jail 
upon  a  false  charge,  it  appears  that  the  con- 
finement resulted  in  his  sickness;  and  when 
we  consider  the  malicious  and  oppressive 
conduct  of  the  plaintiffs  in  error,  and  that 
the  case  is  one  which  calls  for  the  infliction 
of  exemplary  or  punitive  damages,  we  can 
only  conclude  that  the  verdict  of  $1,000  in 
favor  of  the  defendant  was  fully  justified, 
if  not  too  small.  AVe  can  say  without  hesita- 
tion that  an  award  of  a  larger  amount  would 
not  have  been  disturbed  on  the  ground  that 
it  was  excessive. 

It  follows  that  the  assignments  of  error 
must  be  overruled,  and  the  judgment  of  the^ 
district  court  affirmed. 

All  the  justices  concurring. 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


)9 


LOUISVILLE  &  N.  R.  CO.  v.  BALLARD. 

(3  S.  W.  530,  85  Ky.  307.) 

Court  of  Appeals  of  Kentucky.    March  5,  1887. 

Appeal  from  circuit  court,   Marion  county. 

Wm.  Lindsay  and  Rountree  &  Lisle,  for 
appellant.     Hill  &  Rives,  for  appellee. 

HOLT,  J.  The  appellee,  Lou.  E.  Ballard, 
after  purchasing  a  proper  ticket,  took  pas- 
sage from  one  intermediate  station  to  an- 
other, upon  a  passenger  train  of  the  Louisville 
«&  Nashville  Railroad.  It  failed  to  stop  at 
the  platform  at  her  place  of  destination,  which 
was  a  flag  station.  It  was  a  down  grade  at 
that  point,  and  there  is  some  evidence  tend- 
ing to  show  that  the  car  brakes  did  not  op- 
erate well,  in  consequence  of  which  the  train 
ran  some  50  or  GO  yards  beyond  the  platform, 
M'here  it  was  stopped,  and  the  station  then 
announced  by  the  proper  person,  but  the 
appellee  did  not  get  off  the  train.  Upon  the 
other  hand,  there  is  testimony  tending  to  shoAV 
that  this  stop  was  not  made,  and  that  no 
effort  was  made  to  stop  the  train,  until  it 
was  done  at  the  request  of  the  appellee,  at 
a  point  between  her  destination  and  the  next 
station.  The  weight  of  the  evidence  shows 
that  the  conductor  then  informed  her  that 
she  could  either  go  on  to  the  next  station,  or 
he  would  stop  the  train  and  she  could  get  off 
there;  and  that,  upon  his  so  telling  her  the 
second  time,  he  did  stop  it,  and  she  got  off 
at  that  point,  which  was  a  lonely  place,  and 
about  a  mile  beyond  her  station. 

She  says  that  the  conductor  "seemed  very 
impatient,  and  his  tone  was  rather  rough 
for  a  gentleman;"  that  he  did  not  assist  her 
in  getting  off  with  her  baggage,  which  con- 
sisted of  a  valise  and  bundle;  and  that,  as 
she  jumped  from  the  lower  step  of  the  plat- 
form to  the  ground,  he  stood  upon  the  plat- 
form, while  a  brakeman  of  the  train,  who 
was  standing  by,  looked  at  her  and  "grinned." 
Upon  the  other  hand,  there  is  evidence  to 
the  effect  that  the  conductor  did  assist  her 
out  of  the  car,  and  was  altogether  kind  and 
polite  in  his  manner.  There  was  no  request 
upon  her  part  that  the  train  should  be  back- 
ed to  her  station,  but  this  should  have  been 
done,  under  the  circumstances.  The  appel- 
lee was  compelled  to  walk  back  to  her  sta- 
tion, and  from  thence,  three-quartere  of  a 
mile,  to  her  home,  in  consequence  of  which 
she  was  confined  to  her  bed  the  most  of  the 
time  for  three  or  four  days,  and  unable  to 
teach  her  school  for  a  week.  The  jury  in 
this  action  by  her  for  damages  returned  a 
verdict  for  $3,000. 

Manifestly  it  cannot  be  sustained  upon  the 
ground  that  it  did  not  include  exemplary 
damages,  and  was  compensatory  only,  for  a 
breach  of  the  contract  for  transportation.  If 
upheld,  it  must  be  upon  the  ground  that  she 
was  entitled  to  exemplary  damages,  and  that 
this  question  was  submitted  to  the  jury  by 


proper  Instnictions.  They  were  told:  "If 
the  jury  believe  from  the  evidence  that  the 
defendant's  agents  or  employes, .  or  any  of 
them,  in  charge  of  defendant's  train,  carried 
the  plaintiff"  beyond  the  station  for  which 
she  had  purchased  a  ticket,  and  rofased  to 
put  her  oft'  at  her  station,  and  were  indecorous 
or  insulting,  either  in  words,  tone,  or  man- 
ner, they  should  find  for  the  plaintiff,  and 
award  her  damages  in  their  discretion,  not 
exceeding  live  thousand  dollars,  the  amount 
claimed  in  the  petition." 

A  corporation  can  act  only  through  nat- 
ural persons.  It  of  necessity  commits  its 
business  absolutely  to  their  charge.  They 
are,  however,  selected  by  it.  In  the  case  of 
a  railroad,  the  safety  and  comfort  of  pas- 
sengers is  necessarily  committed  to  them. 
They  act  for  it.  Its  entire  power,  pro  hac 
vice,  is  vested  in  them,  and  as  to  passengers 
in  transitu  they  should  be  considered  as  the 
corporation  itself.  It  is  therefore  as  respon- 
sible for  their  acts  in  the  conduct  of  the  train, 
and  the  treatment  of  the  passengers,  as  the 
officers  of  the  train  would  be  for  themselve.>, 
if  they  were  the  owners  of  it.  Public  inter- 
ests require  this  rule.  They  also  demand 
that  the  corporation  should  be  and  it  is  lia- 
ble for  exemplary  damages  in  case  of  an 
injury  to  a  passenger  resulting  from  a  viola- 
tion of  duty  by  one  of  its  employes  in  the 
conduct  of  the  train,  if  it  be  accompanied  by 
oppression,  fraud,  malice,  insult,  or  other  will- 
ful misconduct,  evincing  a  reckless  disregard 
of  consequences.  Dawson  v.  Louisville  &  N. 
R.  Co.,  6  Ky.  Law  Rep.  6G8. 

As  to  female  passengers  the  rule  goes 
still  farther.  Their  contract  of  passage  em- 
braces an  implied  stipulation  that  the  cor- 
poration will  protect  them  against  general 
obscenity,  immodest  conduct,  or  wanton  ap- 
proach. Com.  V.  Power,  7  Mete.  (Mass.)  596; 
Craker  v.  Railway  Co.,  36  Wis.  657;  Nieto 
V.  Clark,  1  Cliff.  145,  Fed.  Cas.  No.  10,262; 
Chamberlain  v.  Chandler,  3  Mason,  242,  Fed. 
Cas.  No.  2,575. 

It  was  improper,  however,  to  instruct  the 
jury,  as  was  in  effect  done  in  this  instance, 
that  "indecorous"  conduct  alone  is  sufficient 
to  authorize  exemplary  damages.  The  term 
is  too  broad.  It  may  embrace  conduct  which 
would  not  authorize  their  infliction.  It  is 
ti'ue  that  the  peculiar  element  which,  enter- 
ing into  the  commission  of  wrongful  acts, 
justifies  the  imposition  of  such  damages,  can- 
not be  so  definitely  defined,  perhaps,  as  to 
meet  every  case  that  may  arise.  It  has  been 
said  that  they  ai'e  allowable  where  the  wrong- 
ful act  has  been  accompanied  with  "circum- 
stances of  aggravation,"  (Chiles  v.  Drake,  2 
Mete.  [Ky.]  146 ;>  or  if  a  trespass  be  "commit- 
ted in  a  high-handed  and  threatening  man- 
ner," (Jennings  v.  Maddox,  8  B.  Mon.  430;) 
or  where  the  tort  is  "accompanied  by  oppres- 
sion, fraud,  malice,  or  negligence  so  great  as 
to  raise  a  presumption  of  malice,"  (Parker  v. 
Jenkins,   3  Bush,    587;)    or,   as   was  said   in 


•60 


COMPENSATORY  AND  EXEMPLARY  DAM.IGES. 


Dawson  v.  Railroad  Co.,  supra,  where  the 
wrongful  act  is  accompanied  by  "insult,  indig- 
nity, oppression,  or  inhumanity." 

It  would,  however,  be  extending  the  rule 
unwarrantably  to  hold  that  they  could  be 
imposed  provided  the  conduct  was  merely 
"indecorous."  This,  as  defined  by  Webster, 
and  as  commonly  understood,  means  impolite, 
or  a  violation  of  good  manners  or  proper 
breeding.  It  is  broad  enough  to  cover  the 
slightest  departure  from  the  most  polished 
politeness  to  conduct  which  is  vulgar  and 
insulting.  It  does  not  necessarily,  or,  indeed, 
generally,  involve  an  insult.  The  latter  as- 
sumes superiority,  and  offends  the  self-re- 
spect of  the  person  to  whom  it  is  offered, 
while  the  former  excites  pity  or  contempt  for 
tlie  one  guilty  of  it.  A  word  or  act  may  be 
both  indecorous  and  insulting,  but  yet  it 
often  lacks  the  essential  elements  of  an  in- 
sult. 

In  the  case  now  under  consideration  the 
jury  may  have  believed  it  was  indecorous  in 
the  conductor  not  to  stop  the  train  at  the 
platform,  or  not  to  carry  her  valise  for  her 
when  she  was  leaving  the  train,  or  to  let 
her  get  off  between  stations,  although  she 
chose  to  do  so  rather  than  suffer  inconveni- 
ence by  being  carried  to  the  next  one,  or  in 
merely  telling  her  that  she  could  walk  back 
to  her  station;  yet  none  of  these  things 
amounted  to  "insult,  indignity,  oppression,  or 
inhumanity." 

The  lower  court  properly  refused  the  re- 
quest as  made  for  special  findings.  The  in- 
terrogatories offered  merely  required  the  jury 
to  say  what  amount  they  found  as  compensato- 
ry, and  what  sum  as  exemplary  damages.  They 
involved  mixed  questions  of  law  and  of  fact. 


Upon  a  retrial  the  question  of  limiting  the 
finding  to  compensatory  damages  should  be 
presented  to  the  jury  under  proper  instruc- 
tions, and  the  difference  between  them  and 
those  which  are  exemplary  defined. 

The  evidence  as  to  the  conduct  of  the  brake- 
man  was  competent.  It  is  true  that  it  was 
not  specifically  compfalned  of  in  the  petition, 
but  only  that  of  the  conductor.  The  brake- 
man  was,  however,  one  of  the  agents  of  the 
railroad  company  in  the  management  of  the 
train  upon  which  the  appellee  was  a  passen- 
ger. It  is  not  necessary  that  a  petition  should 
enumerate  specifically  that  this  or  that  per- 
son connected  with  the  management  of  the 
train  was  guilty  of  improper  conduct  in  order 
to  authorize  the  admission  of  evidence  as  to 
this  or  that  particular  party.  It  is  sufficient 
to  aver  the  breach  of  duty  upon  the  part  of 
those  in  control  of  the  train.  Besides,  in  this 
instance,  the  conduct  of  the  brakeman  com- 
plained of  was  in  the  immediate  presence  of 
the  conductor,  and  occurred  at  the  time  of 
the  other  alleged  acts  of  which  the  appellee 
complains.  We  do  not  mean  to  say  whetner 
he  was  guilty  of  improper  conduct  or  not, 
but  it  was  a  part  of  the  res  gesta3,  and  there- 
fore admissible.  Any  circumstances  attending 
the  commission  of  a  trespass  or  a  wrong,  al- 
though not  set  forth  in  'the  declaration,  may 
be  given  in  evidence,  with  a  view  of  affect 
ing  the  question  of  damages,  save  whei'e 
they  within  themselves  constitute  an  inde- 
pendent cause  of  action.  Sedg.  Dam.  side  p. 
538,  note  3. 

For  the  reason  indicated,  the  judgment  be- 
low is  reversed,  and  cause  remanded  for  a 
new  trial  and  further  proceedings  consistent 
with  this  opinion. 


COMPENSATORY  AND  EXEMPLARY  DAMAfJES. 


Gl 


SOUTHERN  KANSAS  R.  CO.  v.  RICE. 

(16  Pac.  817,  38  Kan.  398.) 
Supreme  Court  of  Kansas.    Feb.  11,  1888. 

Error  to  district  court,  Johnson  county;  J. 
P.  Himlinau,  Jud^e. 

Action  brought  by  Benjamin  Rice  against 
the  Southern  Kansas  Railroad  Company  on 
October  31,  1SS5,  to  recover  as  damages  the 
sum  of  $1,000  for  being  unlawfully  assaulted 
and  ejected  from  a  passenger  car  by  the  con- 
ductor thereof  while  returning  from  Kansas 
City,  Missouri,  to  Olathe,  in  this  state;  the 
plaintiff  at  the  time  having  a  ticket  to  ride  as 
a  passenger  in  the  car.  Subsequently  the  rail- 
road company  filed  an  answer  containing  a 
general  denial.  Trial  had  at  the  March  term, 
ISSG.  The  jury  returned  a  verdict  for  the 
plainliff,  and  assessed  his  damages  at  $117.- 
4G,  and  also  made  the  following  special  find- 
ings of  facts:  "(1)  Did  the  conductor  act 
willfully,  and  in  a  grossly  negligent  manner, 
in  putting  the  defendant  off  the  train?  An- 
swer. He  willfully  put  him  off  the  train. 
(2)  Did  the  conductor  act  with  a  reckless  dis- 
regard of  the  plaintiff's  rights?  A.  Yes.  (3) 
Did  the  plaintiff  state  to  the  conductorthathe 
had  purchased  his  ticket  the  day  before,  and 
could  the  conductor  have  easily  ascertained 
that  fact  from  the  passengers  who  were  ac- 
quainted with  plaintiff?  A.  In  this  case  he 
could.  (4)  How  much  do  you  allow  plaintiff 
as  exemplary  damages?  A.  $71.75."  "First. 
How  much  do  you  allow  plaintiff  for  pe- 
cuniary loss?  A.  $.71.  Second.  Was  plain- 
tiff injured  in  person  by  the  conductor?  A. 
No.  Third.  How  much  do  you  allow  plain- 
tiff for  injury  to  his  person?  A.  Nothing. 
Fourth.  Did  plaintiff  lose  any  time  by  reason 
of  defendant's  conductor  refusing  to  honor 
his  ticket,  and,  if  so,  how  much?  A.  No. 
Fifth.  How  much  do  you  allow  plaintiff  for 
loss  of  time?  A.  Nothing.  Sixth.  How  much 
do  you  allow  plaintiff  for  inconvenience  in 
going  from  his  seat  to  the  platform  and  back 
again?  A.  Nothing.  Seventh.  Was  plaintift' 
treated  in  an  insulting  or  brutal  manner  by 
the  conductor?  And,  if  so,  state  fully  how. 
A.  An  insulting  manner.  Eighth.  How  much, 
if  anj-thing,  do  you  allow  plaintiff  for  injury 
to  his  feelings?  A.  $10.00.  Ninth.  How 
much,  if  anything,  do  you  allow  plaintiff  for 
expenses,  attorney's  fees,  or  time  in  prosecut- 
ing this  ease?  A.  $35.00."  The  defendant 
filed  a  motion  to  set  aside  the  verdict  of  the 
juiy,  and  for  a  new  trial,  which  was  over- 
ruled. Subsequently,  judgment  was  entered 
upon  the  verdict.  The  railroad  company  ex- 
cepted, and  brings  the  case  here. 

Geo.  R.  Peck,  A.  A.  Hurd,  and  Robert  Dun- 
lap,  for  plaintiff  in  ert-or.  John  T.  Little 
and  Samuel  T.  Seaton,  for  defendant  in  error. 

HORTON,  C.  J.  (after  stating  the  facts  as 
above).  On  October  29,  1SS5,  Benjamin  Rice, 
a  colored  man,  purchased  of  tlie  ticket  agent 
of  the  Southern  Kansas  Railroad  Couipauy 


at  Olathe,  in  this  state,  for  50  cents,  a  lim- 
ited railroad  ticket  to  Kansas  City,  Missouri, 
and  return,  good  for  three  days;  the  date  of 
issue  being  stamped  on  the  back.  On  that 
day  he  was  carried  as  a  passenger  by  the 
railroad  company  upon  one  of  its  passenger 
.  trains  from  Olathe  to  Kansas  City.  The 
"going  coupon"  of  the  ticket  was  torn  (iff, 
and  taken  up  by  the  conductor  of  the  train. 
On  the  next  day,  October  30th,  Rice,  desiring 
to  return  to  Olathe,  boarded  one  of  the  pas- 
senger trains  of  the  company,  which  left 
Kansas  City  about  10  o'clock  p.  m.,  and, 
when  the  conductor  called  upon  him  for  his 
fare,  presented  the  "return  coupon"  of  the 
ticket,  which  he  had  purchased  the  day  be- 
fore. The  conductor  took  it  to  the  light, 
and,  after  examining  it,  handed  it  back  to 
Rice,  saying  it  was  not  good,  and  informed 
him  that  he  could  not  honor  it.  Rice  insisted 
that  the  ticket  was  good,  and  said  to  the  con- 
ductor that  he  had  purchased  the  ticket  the 
day  before,  and  that  he  (the  conductor)  had 
carried  him  upon  the  ticket  to  Kansas  City 
on  that  day.  Another  passenger  also  stated 
to  the  conductor,  at  the  time,  that  he  had 
seen  Rice  purchase  the  ticket  on  the  29th. 
The  conductor  replied  that  he  could  not  honor 
the  ticket,  and  subsequently  took  hold  of 
Rice's  coat-collar,  and  led  him  out  of  the  car. 
Rice  had  no  money  to  pay  any  extra  fare; 
and  when  he  was  off  the  car,  or  about  to  get 
off,  a  friend  gave  him  75  cents,  which  he  gave 
to  the  conductor,  who  returned  him  5  cents, 
punched  a  receipt  for  his  fare,  and  permitted 
him  to  ride  to  Olathe. 

On  the  part  of  Rice,  it  is  contended  that  the 
ticket  he  presented  showed  plainly  on  its 
back  that  it  was  stamped  at  Olathe  on  the 
29th  of  October;  that  he  told  the  conductor 
that  he  did  not  have  any  monej'  to  pay  any 
more  fare;  that  he  was  quietly  in  his  seat 
as  a  passenger  when  ordered  by  the  conduct- 
or to  leave  the  train;  that  he  did  not  make 
any  forcible  resistance  to  the  orders  of  the 
conductor;  but  that  the  conductor  took  him 
out  of  the  car,  and  off  upon  the  steps  of  the 
platform.  On  the  part  of  the  railroad  com- 
pany, it  is  claimed  that  the  ticket  had  been 
folded  up  and  creased  at  the  date;  that  the 
conductor  took  it  to  the  light,  and  examined 
it  cai-efully;  that  the  date  was  obliterated; 
that  the  ticket  looked  so  old  and  worn  that 
the  conductor  believed  it  had  expired;  that 
he  informed  Rice  that  the  ticket  was  not 
good,  and  that  he  could  not  ride  upon  it,  but 
would  have  to  pay  fare;  that,  w'hen  the  train 
reached  Holliday,  the  conductor  inquired  of 
Rice  what  he  was  going  to  do;  that  Rice 
then  refused  to  pay  fare  or  get  off  the  train; 
that  the  conductor  then  took  hold  of  Rice's 
coat-collar,  and  led  him  to  the  platform  of 
the  station,  or  to  the  last  step  of  the  car; 
that  then  a  friend  told  Rice  to  come  back, 
and  he  would  give  him  money  to  pay  his 
fare;  and  the  conductor  permitted  Rice  to 
take  his  seat  and  ride  to  his  destination; 
that,  when  Rice  was  informed  that  he  w'ould 


COMPENSATORY  AND  EXEMPI.AKY  DAMAGES. 


have  to  pay  his  fare  or  leave  the  car,  it  was 
his  duty  to  do  one  or  the  other;  that  he 
should  have  paid  his  fare,  and  relied  upon 
his  remedy  to  recover  it  back;  that,  if  he 
could  not  do  this,  he  should  have  quietly 
left  the  train,  and  not  provoked  or  made  nec- 
essai-y  an  assault;  that  therefore  he  should 
have  recovered  only  71  cents,  that  amount  be- 
ing the  sum  assessed  by  the  jui-y  for  his  pe- 
cuuiaiy  loss. 

The  railroad  company  asked  instructions 
which  tended  to  limit  the  amount  of  dam- 
ages that  Rice  was  entitled  to  recover  to  the 
exact  fare  paid  by  him,  with  interest  thereon. 
The  court  refused  to  give  these  instructions, 
but  directed  the  jury,  among  other  things,  as 
follows:  "I  instruct  you  that  if  you  find  the 
plaintiff  presented  to  the  conductor  for  his 
passage  a  limited  ticket,  good  only  for  three 
days  from  the  date  of  its  sale;  and  that  the 
conductor,  from  the  mutilated  and  worn  con- 
dition of  the  ticket,  was  unable  to  read  the 
date  on  the  ticket,  and  honestly  believed  that 
the  ticket  was  an  old  one,  and  not  good; 
and  for  this  i-eason,  and  without  any  unnec- 
essary force  or  indignity  to  the  plaintiff,  re- 
quired him  to  pay  his  fare  or  get  off,  and 
did,  upon  refusal  and  failure  to  pay  fare,  r*^- 
move  said  plaintiff  without  any  unnecessary 
force,  and  without  injury  to  his  person,  to 
the  platform  of  the  car,  or  to  the  platform  or 
ground  at  a  regular  station;  and  then  plain- 
tiff paid  his  fare,  and  continued  his  journey 
on  the  same  train,  and  without  delay,— then, 
if  you  find  as  a  fact  that  the  ticket  presented 
by  plaintiff  was  a  good  and  valid  ticket,  and 
that  the  conductor  had  no  right  to  collect 
this  fare  from  the  plaintiff,  you  must  find  a 
verdict  for  the  plaintiff,  and  the  measure  of 
his  damages  would  be  the  amount  of  fare 
paid  by  him,  with  interest  at  seven  per  cent, 
per  annum  from  October  30th,  188.3,  and  ac- 
tual compensation  for  the  injury  and  outrage, 
if  anj%  suffered  by  plaintiff  from  the  alleged 
assault."  We  perceive  no  error  in  this  in- 
struction. In  actions  for  the  recovery  of  dam- 
ages for  the  wrongful  expulsion  of  a  passen- 
ger from  a  train,  the  passenger  may  recover 
for  his  time,  inconvenience,  the  necessary  ex- 
penses to  which  he  is  subjected,  and  if  treat- 
ed with  violence,  or  in  an  insulting  manner, 
for  the  injuries  to  his  person  and  feelings. 
If  the  expulsion  be  malicious,  or  through 
negligence  which  is  gross  and  wanton,  then 
exemplary  damages  may  be  awarded. 
"There  is  a  special  duty  on  the  carrier  to 
protect  its  passengers,  not  only  *against  the 
violence  and  insults  of  strangers  and  co-pas- 
sengers, but,  a  fortiori,  against  the  vio- 
lence and  insults  of  its  own  servants;  and 
that  for  a  breach  of  that  duty  he  ought  to 
be  compelled  to  make  the  amplest  reparation. 
The  law  wisely  and  justly  holds  him  to  a 
strict  and  rigorous  accountability.  AVe  would 
not  relax  in  the  slightest  degree  this  strict 
accountability.  We  know  that  upon  it,  in  no 
small  degree,  depends  the  safety  and  com- 
fort of  passengers."    Railway  Co.  v.  Weaver, 


16  Kan.  45G;  Railway  Co.  v.  Kessler,  18 
Kan.  523.  We  fully  concede  that  no  one  has 
a  right  to  resort  to  force  to  compel  the  per- 
formance of  a  contract  made  with  him  by 
another;  and  a  passenger  about  to  be  wrong- 
fully expelled  from  a  railroad  train  need  not 
require  force  to  be  exerted  to  secure  his 
rights,  or  increase  his  damages.  For  any 
breach  of  contract  or  gross  negligence  on  the 
part  of  the  conductor,  or  the  other  employes 
of  a  railroad  company,  redress  must  be 
sought  in  the  courts,  rather  than  by  the 
strong  arm  of  the  person  who  thinks  himself 
about  to  be  deprived  of  his  rights.  A  pas- 
senger should  not  be  permitted  to  invite  a 
wrong,  and  then  complain  of  it.  Hall  v. 
Railroad  Co.,  15  Fed.  57;  Towusend  v.  Rail- 
road Co.,  56  N.  Y.  301;  Bradshaw  v.  Railroad 
Co.,  135  Mass.  409;  Railroad  Co.  v.  Connell, 
112  111.  290;  Car  Co.  v.  Reed,  75  111.  125;  3 
Wood,  Ry.  Law,  §  364.  Of  course,  a  party 
upon  a  train  may  resist  when,  under  the  cir- 
cumstances, resistance  is  necessary  for  the 
protection  of  his  life,  or  to  prevent  probable 
serious  injury;  nor  can  a  party  be  lawfully 
ejected  from  a  train  while  in  motion,  so  that 
his  being  put  off  would  subject  him  to  great 
peril.  In  this  case  Rice  made  no  unreason- 
able resistance.  He  did  not  resort  to  force 
or  violence.  Having  a  good  ticket,  and  be- 
ing entitled  to  ride,  he  refused  to  pay  fare 
or  get  off  the  train.  The  conductor  had  no 
difficulty  in  leading  him  off,  and  about  all 
that  Rice  did  was  merely  to  assert  his  lawful 
right  to  ride  upon  the  train.  Where  a  pas- 
senger with  a  clear  right  and  a  clean  ticket 
is  entitled  to  ride  on  that  trip  and  train, 
and  is  wrongfully  ejected  without  forcible 
resistance  upon  his  part,  the  jury  are,  and 
ought  to  be,  allowed  great  latitude  in  assess- 
ing damages.  They  should  award  liberal 
damages  in  full  compensation  for  the  injuries 
received.  The  quiet  and  peaceable  behavior 
of  a  passenger  is  to  his  advantage,  rather 
than  to  his  detriment. 

Complaint  is  also  made  of  other  instruc- 
tions ot  the  court  regarding  the  measure  of 
damages.  Among  other  things,  the  court 
said  to  the  jury  that  if  "the  assault  was 
malicious,  and  without  cause  or  provocation, 
or  was  accompanied  by  acts  of  gross  insult, 
outrage,  or  oppression,  you  may  award  the 
plaintiff  exemplai-y  or  vindictive  damages." 
Also,  "that  in  estimating  damages  they  might 
take  into  consideration  the  indignity,  insult, 
and  injury  to  plaintiff's  feelings  by  being 
publicly  expelled."  Further,  that,  if  they 
found  "there  was  on  the  part  of  the  conduct- 
or eithei"  malice,  gross  negligence,  or  oppres- 
sion, they  would  not  be  confined  in  fixing 
damages  to  the  actual  damages  received,  but 
were  justified  in  giving  exemplary  damages."^ 
It  is  said  that  these  instructions  were  mis- 
leading and  erroneous,  because  there  was  no 
evidence  whatever  to  show  that  the  con- 
ductor acted  with  malice  or  gross  negligence. 
Upon  the  evidence  of  Rice,  corroborated  by 
McCulloch,  another  passenger,  who  said  that 


COMPENSATORY  AND  EXEMPLARY  DAMAGES. 


G3 


be  saw  Rice  purchase  the  ticket  on  October 
29th,  there  was  evidence  before  the  juiy  up- 
on which  to  found  these  instructions.  Huf- 
ford  V.  Railroad  Co.  (Mich.)  31  N.  W.  544. 
The  forcible  expulsiou  of  Rice  from  the  car 
where  he  was  rightfully  seated  was  such  a 
wrong  as  is  inevitably  accompanied  with 
more  or  less  outrage  and  insult.  There  was 
no  excuse  for  the  act  of  expulsion,  except  the 
honest  mistake  or  the  gross  negligence  of 
the  conductor.  If  that  mistake  was  due  to 
such  reckless  indifference  to  the  rights  of  a 
passenger  on  the  part  of  the  conductor  as 
established  gross  negligence,  amounting  to 
wantonness,  and  the  jury  so  found,  they 
might  find  exemplary  damages.  Railroad  Co. 
V.  Kessler,  supra;   Railroad  Co.  v.  Rice,  10 


Kan.  426.  Whether  the  conductor  was  gross- 
ly negligent,  amounting  to  wantonness,  or 
actuated  by  malice,  were  matters  before  the 
jmy,  for  their  determination  upon  the  evi- 
dence. Under  the  authority  of  Titus  v.  Cor- 
kins,  21  Kan.  722,  Rice  was  entitled  to  re- 
cover the  expenses  incurred  by  him  in  the 
litigation,  if  entitled  to  exemplary  damages. 
Hall  V.  Railroad  Co.,  15  Fed.  95-97.  The 
amount  of  the  verdict  in  this  case  was  only 
$117.40;  therefore  the  damages  are  not  so  ex- 
cessive as  to  indicate  passion  or  prejudice  on 
the  part  of  the' juiy.  The  other  matters  sub- 
mitted are  immaterial. 

The  judgment  of  the  district  court  will  be 
afflrmed. 

All  the  justices  concurring. 


G4 


COMPENSATORY  AND  EXE-MrLARY  DAMAGES. 


HANSLEY   V.   JAMESYILLE   &  W.   R.   CO. 

(23  S.  E.  443,  117  N,  C.  50.5.) 

Supreme  Court  of  North   Carolina.      Oct  22, 
1S95. 

On  petition  for  relieariug.    Denied. 

Cluis.  F.  Warren  and  L.  T.  Beck  with,  for 
petitioner.  Jolui  H.  Small,  Macllae  &  Day, 
and  W.  B.  Rodman,  for  defendant. 

FURCHES,  J.  This  is  a  petition  to  rehear 
this  case,  decided  at  September  term,  1894, 
of  this  court,  and  published  in  115  N.  0.  602, 
20  S.  E.  528.  The  defendant  is  a  corpora- 
tion nnder  the  laws  of  this  state  running  and 
operating  its  road  between  the  towns  of 
Washington  and  Jamesville,  transporting 
both  freight  and  passengers  as  a  common  car- 
rier for  pay.  The  plaintiff,  a  citizen  of 
Washington,  wanting  to  go  to  the  town  of 
Edenton  and  back,  on  the  7th  of  September, 
1892,  purchased  a  ticket  of  defendant  to  James- 
ville, and  from  Jamesville  back  to  Washing- 
ton on  the  9th.  The  defendant  carrie<l  plain- 
tiff to  Jamesville  on  the  7th,  and  he  went 
on  to  Edenton,  and  Avas  in  that  town  on  the 
8th  of  September.  (It  is  not  stated  in  this 
case  that  plaintiff  went  to  Edenton,  and  was 
there  on  the  8th,  but  this  was  stated  and 
agreed  to  by  counsel  on  the  argument.)  On 
the  8th  of  September,  soon  after  leaving 
Jamesville  for  Washington,  the  axle  of  de- 
fendant's engine  broke,  and  Avhen  the  plain- 
tiff returned  from  Edenton  to  Jamesville  on 
the  9th  the  defendant  was  unable  to  carry 
him  on  its  road  from  Jamesville  back  to 
Washington,  as  it  had  contracted  to  do. 
Thereupon  plaintiff  brings  this  action  for 
damages,  which  he  lays  at  $500,  and  alleges 
thac  defendant's  roadbeii  vv-as  in  a  bad,  shack- 
ly,  and  ruinous  condition;  that  defendant 
had  but  two  engines,  both  of  which  were 
worn  and  in  bad  condition,  one  of  them  a1 
that  time  being  in  the  shops  for  repair,  and 
not  in  a  condition  to  be  used;  that  the  bad 
condition  of  defendant's  roadbed  had  rattled 
the  other  one  so  as  to  cause  the  axle  to 
break;  that  all  this  showed  such  willful  neg- 
ligence on  the  part  of  defendant  towards  the 
public  and  towards  the  plaintiff  as  to  entitle 
him,  not  only  to  compensatory  damages, 
but  to  exemplary  damages.  Tlie  defendant 
answered,  denying  the  allegation  of  negli- 
gence, admits  that  the  road  was  not  in  good 
condition,  says  it  was  poor  and  struggling 
for  existencf,  and  that  it  was  expending  the 
Avhole  earnings  of  the  road,  and  more,  in 
tiying  to  keep  it  ic  good  repair,  and  was 
not  able  to  do  so.  Therefore  defendant  de- 
nies that  it  is  liable  to  plaintiff  for  anything, 
and  certainly  not  for  punitive  damages. 
And,  without  reviewing  the  evidence,  it  is 
such  as  to  warrant  us  in  saying  that  the  road- 
bed was  in  a  bad,  dilajiidated,  and  ruinous 
condition;    that  defendant  had  but  two  en- 


gines, and  they  were  old,  worn,  and  in  bad 
condition.  That  plaintiff  is  entitled  to  com- 
pensatory  damages  tliere  can  be  no  doubt, 
but  as  to  whether  he  is  entitled  to  exem- 
plary damages  is  the  question.  It  is  said 
that  railroads  are  quasi  public  servants;  thai 
they  are  created  by  the  public  (the  legislatinc > 
and  owe  duties  to  the  public  in  return  for  tlieir 
right  of  franchise.  And,  while  this  is  true,  it 
can  only  be  considered  by  us  as  a  reason  for  es- 
tablishing the  law  as  we  shall  Unci  it,  and  not 
as  a  reason  for  us  to  establish  the  law.  Nor 
can  we  consider  the  question  as  to  whether  de- 
fendant's road  is  a  poor  corporation,  strug- 
gling for  existence,  and  expending  all  its 
earnings,  and  more,  on  its  road;  or  whether 
it  is  a  rich  corporation.  These  are  questions 
we  have.no  right  to  consider  in  passing  upon 
the  question  of  law  as  to  whether  plaintiff 
is  entitled  to  recover  damages  against  de- 
fendant or  not.  Taylor  v.  Railroad  Co.,  48 
N.  H.  317. 

The  legal  question  involved  in  this  case  is 
conceded  to  be  an  important  one,  and  is 
entitled  to  our  best  consideration.  It  is  one 
that  has  been  so  much  discussed  by  law 
writers  and  by  the  courts  in  judicial  opin- 
ions, in  which  different  phases  or  facts  ap- 
pear, that  it  is  somewhat  difficult  to  estab- 
lish ourselves  on  what  we  consider  solid 
ground.  Often  a  very  sliglit  difference  in  the 
facts  changes  the  reason  upon  wliich  a  case 
is  decided.  We  find  that  decided  cases,  unless 
closely  attended  to,  are  often  misleading. 
Also  often  a  misunderstanding  of  some  of 
the  facts),  or  an  inadvertence  to  some  fact  in 
the  case,  leads  to  error.  This,  we  think,  was 
the  case  with  the  learned  justice  who  wrote 
the  opinion  we  are  now  reviewing.  In  stat- 
ing the  facts  in  Purcell's  Case,  108  N.  C.  414, 
12  S.  E.  954,  956,  he  stated  that  when  the 
defendant's  train  passed  the  depot  it  "was 
overloaded,"  when  there  was  evidence  tend- 
ing to  show  that  tliere  was  room  for  a  num- 
ber of  other  passengers;  and  this  was  the 
hypothesis  upon  which  the  court  was  asked 
to  charge  tiie  jury,  and  which  was  refused 
by  the  court.  This  inadvertence,  as  we  think, 
led  the  court  to  overrule  riu-ccll's  Case,  su- 
pra. After  as  full  investigation  as  Ave  have 
been  able  to  give  to  this  case,  we  are  of  the 
opinion  that  the  true  ground  for  allowing 
exemplary  damages  is  pei'sonal  injniy  to 
plaintiff,  caused  by  the  negligence  of  de- 
fendant (and  we  do  not  undertake  here  to 
enumerate  all  the  causes  for  exemplary  dam- 
ages wliere  there  is  personal  iujui'y).  And 
where  there  is  no  personal  injury,  there  must 
be  insult,  indignity,  contempt,  or  something 
of  the  kind,  to  Avhich  the  laAV  imputes  bad 
motive  toAvards  a  plaintiff;  and  when  they 
are  alloAved  they  are  in  addition  to  compen- 
s-'atory  damages.  1  Sedg.  Dam.  520;  5  Am. 
&  Eng.  Enc.  Law,  p.  43,  note,  and  cases 
cited.  This  principle  we  find  is  recognized 
and  enforced  in  the  folio Aving  cases:  A 
railroad  conductor  kissed  a  lady  passenger 
on   his   train,   and   she   AA'as   alloAved   to   re- 


C().Mri:NSA  r(»i;v  a.m>  exkmi'i.auy  damages. 


6' 


cover  imnitive  dauiages,  upon  the  ground  that 
it  was  a  personal  indignity.  5  Am.  &,  Eng. 
Euc.  Law,  p.  43.  Where  a  raih-oad  con- 
ductor refused  to  carrj-  a  passi>nger  after  he 
had  paid  his  faro,  the  road  is  liable  to  ex- 
oniplary  damages.  3  Suth.  Dam.  §S  9.3.">.  1»37. 
fhis  is  upon  the  same  ground.  Plaintiff  is 
not  entitled  to  exemplary  damages  unless 
tliere  is  a  willful  or  intentional  violation  of 
plaintiff's  personal  riglits.  Kailroad  Co.  v. 
Arms,  91  U.  S.  4S9.  Where  a  railroad  car- 
ried a  lady  passenger  a  few  Inuidred  yards 
beyond  the  station,  and  upon  application  of 
the  passenger  refused  to  l)ack  the  train  to  the 
station,  but  put  the  passenger  out  in  a  driving 
rain,'  with  her  infant  child  and  baggage,  the 
defendant  was  held  to  be  lial)le  to  punitive 
damages.  But  this  was  put  upon  the  ground 
of  personal  indignity  and  insult,  as  all  the 
cases  we  have  cited  are;  and  the  fact  that 
the  passenger  could  not  use  her  umbrella, 
got  wet,  and  was  sick  from  the  effects,  Avas 
only  allowed  in  evidence  upon  the  measure 
of  damages.  But  the  gravamen  of  the  ac- 
tion was  the  personal  indignity  with  which 
the  plaintiff  had  been  treated  l)y  the  defend- 
ant. Kailroad  Co.  v.  Sellers,  93  Ala.  13,  9 
South.  .375.  We  might  cite  many  other  cases 
1()  sustain  the  principle  we  have  laid  down, 
but  do  not  deem  it  necessary. 

We  make  no  question,  under  our  system  of 
liberal  pleading,  that  plaintiff'  may  recover  ei- 
ther in  contract  or  tort,  if  he  has  made  out 
his  case.  But  he  can  no  more  recover  in  tort 
Avithout  making  out  his  case  than  he  could 
recover  in  contract  without  making  out  his 
case.  The  fact  that  the  defendant's  road  was 
in  bad  condition  was  no  insult  or  indignity 
to  plaintiff,  and  as  there  was  no  personal  in- 
jury on  account  of  its  bad  condition,  this  af- 
fords him  no  cause  of  action.  The  fact  that 
defendant's  engine  broke  down  on  the  Sth 
when  plaintiff'  was  in  Edenton,  was  no  per- 
sonal insult,  indignity,  or  intentional  wrong 
to  plaintiff.  No  doubt  the  defendant  regret- 
ted the  breaking  down  of  the  engine  as  much 
as  plaintiff".  The  fact  that  plaintiff  had  a 
light  of  action  for  breach  of  the  contract  gives 
him  no  right  of  action  for  tort  against  the  de- 
fendant. And  unless  he  had  the  right  to 
maintain  an  action  of  tort,  he  had  no  right 
to  punitive  damages.  There  can  be  no  dam- 
ages recovered  when  there  is  no  right  of  ac- 
tion. Damages  are  not  the  cause  of  action, 
but  the  result  of  the  action.  Taking  all  the 
evidence  in  the  case  off'ered  by  the  plaintiff, 
or  that  may  be  considered  in  his  favor,  we 
do  not  think  it  makes  acause  of  action  against 
llu-  defendant  in  tort,  and  that  the  defend- 
.•int  was  entitled  to  have  its  second  prayer 
for  instruction  submitted  to  the  jury,  to 
wit,  "Taking  the  entire  evidence  in  view,  the 
plaintiff'  is  not  entitled  to  punitive  damages." 
This  was  refused  by  the  court,  and  we  think 
there  was  error.  We  have  arrived  at  our 
conclusion  by  a  different  treatment  of  the 
case,  to  some  extent,  from  that  adopted  by 
the  court  in  the  opinion  published  in  115  N. 
hX\y  DAM.2d  Ed.— 5 


C.  G02,  20  S.  E.  528;  but  our  judgment  is  the 
same.  And  in  this  opinion  we  do  not  think 
it  necessary  to  disturb  the  judgment  as  an- 
nounced in  rurcell's  Case,  supra.  But  the 
judgment  in  that  case  should  lie  put  ujion  the 
ground  that  the  defendant  treated  the  plain- 
tiff, Furcell,  with  indignity  and  contempt 
in  rushing  by  the  station  at  faster  speed, 
when  there  was  room  for  other  passengers, 
or  at  least  when  tliere  was  evidence  tending 
to  show  this,  and  the  court  refused  the  prayer 
for  instruction  submitting  this  question  to  the 
jury.     The  petition  is  dismissed. 

CLARK,  J.  (concurring  in  part).  Concur- 
ring in  the  opinion  in  so  far  as  it  reinstates 
the  authority  of  Purcell  v.  Kailroa.d  Co.,  108 
N.  C.  414,  12  S.  E.  954,  95<;,  the  vast  and 
growing  importance  of  the  principles  involv- 
ed in  this  case  to  every  one  who  sliall  travel 
over  or  ship  freight  by  these  great  public 
agencies  forbids  my  acquiescence  in  some  of 
the  reasoning  relied  on  in  the  present  case. 
In  the  recent  case  of  Railroad  Co.  v.  Pren- 
tice, 147  U.  S.  10(k  13  Sup.  Ct.  261,  Mr.  Jus- 
tice Gray  commends  the  historical  instruction 
of  Chief  .Justice  Pratt  (afterwards  Loid  Cam- 
den) that:  "A  jury  have  it  in  their  power  to 
give  damages  for  more  than  the  injury  receiv- 
ed. Damages  are  designed  not  only  as  a  sat- 
isfaction to  the  injured  person,  but  likewise 
as  a  punishment  to  the  guilty  to  deter  from 
any  such  proceeding  for  the  future,  and  as  a 
proof  of  the'  detestation  of  the  jury  of  the  ac-  ' 
tion  itself."  And  Mr.  Justice  Gray,  for  the 
court,  adds:  "The  doctrine  is  well  settled" 
that  the  jury,  in  addition  to  compensatory 
damages,  "may  award  exemplary,  punitive, 
or  vindictive  damages,  sometimes  called 
'smart  money,'  if  the  defendant  has  acted 
wantonly  *  *  *  or  with  criminal  indift'er- 
ence  to  civil  obligations."  In  the  present  case 
his  honor  below  cliarged  the  jury  that:  "If 
defendant  failed  to  provide  proper  means  for 
transportation  of  passengers,— as,  for  in- 
stance, the  plaintiff  in  this  ease,— as  they  had 
undertaken  to  do,  wantcnily  and  willfully,  the 
jury  may  give  punitive  or  punishing  damages; 
and  the  amount  of  such  is  largely  a  matter 
for  the  jury  to  determine,  but  the  court  will 
supervise,  so  as  to  see  that  no  wrong  is  done." 
This  sums  up  in  a  few  words  the  whole  con- 
troversy in  this  case,  and  it  is  this  charge 
which  "is  this  day  brought  into  question." 
In  Furcell's  Case,  supra,  this  courf.  in  a  unan- 
imous opinion,  laid  down  the  wholesome,  and 
it  would  seem  the  necessary,  principle  that 
for  the  willful  and  wanton  violation  by  a  rail- 
road corporation  of  the  regulations  prescribed 
for  its  control  and  conduct  by  the  lawmaking 
power  (Code,  §  19(i3)  such  corporation  is  lia- 
ble to  punitory  damages.  These  words,  "will- 
ful and  wanton,"  have  a  well-detined  meaning 
in  our  courts,  and  have  been  construed  in 
State  V.  Brigman,  94  N.  C.  888,  and  State  v.. 
Morgan,  98  N.  C.  641,  8  S.  E.  927,  to  mean 
"purposely,  intentionally,  and  with  reckless. 
i  disregard  of  the  rights  of  others."    Om-  courts. 


GO 


COM  I 'i:\SAT01tY  AND  EXEMPLARY  DAMAGES. 


liave  iiithcUl  the  authority  to  grant  punitory 
(lamagi's  in  all  proper  cases,  and  if  they  could 
ever  be  sninted  auainst  a  corporation  in  any 
<ase  it  would  seem  certainly  they  should  lie 
whenever  the  conduct  of  its  officials  has 
shown  a  "willful,  intentional,  violation"  of 
the  statutes  enacted  by  the  legislature  for 
the  control  of  these  corporations,  and  a  "reck- 
less disrejrard  of  the  rights  of  the  traveling- 
public"  or  sliippers  of  freight.  The  sover- 
eignty which,  through  its  agents,  created  and 
gave  existence  to  this  corporation,  has  recog- 
nized this  rule  as  wholesome  and  just,  for  in 
the  act  creating  the  railroad  commission  (Act 
1891,  c.  320,  §  11)  it  is  provided  in  almost 
identically  the  same  words  (indeed,  leaving 
out  the  word  "Avantonly")  that  for  a  "willful 
violation  of  the  rules  and  regulations  made 
by  the  connuissioners  raili'oad  companies  are 
liable  for  exemplary  damages."  It  would  be 
the  strangest  of  anomalies  if  a  railroad  coi*- 
poration  is  liable  to  exemplary  damages  for 
the  willful  violation  of  the  regulations  of  the 
railroad  commission,  but  is  not  thus  liable 
for  the  willful  and  wanton  violation  of  the 
regulations  prescribed  by  the  legislative  pow- 
er which  created  them  both.  And  we  should 
have  this  further  anomaly  in  the  law:  A  tele- 
graphic dispatch  announcing  the  critical  ill- 
ness of  a  near  relative  is  sent.  If  not  deliv- 
ered promptly,  the  sendee,  as  is  properly  held 
by  numerous  decisions  of  this  court,  is  enti- 
tled to  exemplary  damages,  though  he  has 
suffered  no  personal  injury,  nor  has  any  in- 
dignity been  inflicted  upon  him.  Young  v. 
Telegraph  Co.,  107  N.  C.  370,  11  S.  E.  1044; 
Thompson  v.  Telegraph  Co..  107  N.  C.  44!). 
12  S.  E.  427;  Sherrill  v.  Telegraph  Co.,  lie. 
N.  C.  65,5,  21  S.  E.  429.  Tlie  reason  is  thai, 
being  put  upon  notice  by  the  tenor  of  the  dis 
patch,  it  is  a  wanton  and  willful  violation  of 
the  duties  for  which  it  was  incorporated  for 
the  company  to  fail  to  deliver  the  message 
promptly,  and  the  highest  reasons  of  public 
policy  recjuire  that  exemplary  damages  should 
be  imposed.  Now,  suppose  the  dispatch  is 
delivered,  and  the  sendee  starts  for  his  home, 
but  the  railroad  corporation,  finding  that  it 
can  send  a  larger  number  of  passengers  to 
another  point,  sto])s  its  car, — as  in  the  present 
case  they  stopped  it,  because  it  was  cheaper 
to  send  a  broken  piece  of  machinery  to  Nor- 
folk to  repair  than  to  keep  necessary  repair 
shops  or  another  engine.— and  by  this  willful 
and  wanton  violation  of  its  statutory  duties  to 
furnish  sutficient  trai)S])ortation  the  recipient 
of  the  telegi'am  does  not  reach -the  bedside  of 
Ills  d.ving  wife,  Avould  it  not  be  an  anomaly 
that  for  a  Avillful  and  wanton  violation  of  its 
duty  to  deliver  the  telegram  promptly  the  tele- 
graph company  is  liable  to  exemplary  dam- 
ages, but  for  an  equally  willful  and  wanton 
violation  by  the  railroad  corporation  to  trans- 
port the  passenger  according  to  schedule  tliat 
company  is  only  liable  to  pay  the  passenger's 
board  bill  during  his  detention.  In  a  case 
where  the  coriwration  failed  to  bring  the  pas- 
.senger  home  on  his  round-trip  ticket,  as  the 


defendant  in  this  case  failed  to  do,  punitive 
damages  were  sustained  in  Head  v.  Itailroad 
Co.,  79  Ga.  3.5S,  7  S.  E.  217. 

But  it  was  contended  on  tlie  argument  that 
though  the  raiP-oad  corpoivation  is  liable  for 
the  willful  and  wanton  violation  of  its  statu- 
tory duty  in  running  its  trains  by  a  station 
without  stopping,  and  thus  failing  to  take  on 
a  passenger  wlieu  tliere  happens  to  be  a 
vacant  seat,  it  is  not  so  liable  if  with  full 
notice  of  more  passengers  waiting  at  a  sta- 
tion than  the  cars  can  carry,  and  in  time  to 
add  more  cars,  it  fails  to  do  so.  It  is  difli- 
cidt  to  recognize  the  autliority  to  hold  that 
this  act  of  willful  violation  of  its  statutory 
duties  and  wanton  disregard  of  the  rights  of 
the  public  does  not  subject  the  corporation  to 
punitive  damages,  while  the  same  willfulness 
and  wantonness  in  running  by  a  station  with- 
out stopping  does  so  subject  the  corporation 
if  there  happens  to  be  a  vacant  seat.  It  is 
the  same  willfulness  and  wantonness  to  fail 
to  have  sutficient  seats  when  the  corporation 
has  notice  in  time  and  cars  in  its  control  as 
not  to  stop  to  fill  the  empty  seat.  The  stat- 
ute authorizes  no  such  discrimination.  It  pro- 
vides* (Code,  §  1903):  "Every  railroad  cor- 
poration *  *  *  shall  furnish  sutficient  ac- 
commodation for  the  transportation  of  all  such 
passengers  and  property  as  shall  within  a 
reasonable  time  previous  thereto  be  offei'ed 
for  transportation  at  the  place  of  stopping 
and  at  the  usual  stopping  places  established 
for  receiving  and  discharging  passengers  and 
freight  for  that  train,  *  *  *  and  shall  be 
liable  to  the  party  aggrieved  in  damages  for 
any  neglect  or  refusal."  The  statute  nowhere 
intimates  any  distinction  whereby  one  will- 
ful and  wanton  violation  of  the  statute  is 
cause  for  exemplary  damages,  and  that  an- 
other equally  willful  and  wanton  violation  of 
the  same  statute  incurs  no  such  liability. 
The  reasonable  and  impartial  rule  laid  down 
by  a  unanimous  court  in  l^urceU's  Case  is  that, 
if  the  breach  of  the  statute  "was  mere  in- 
advertence or  negligence,  or  was  caused  by 
an  unforeseen  number  of  passengers  present- 
ing themselves,  which  rendered  it  unsafe  to 
take  a  greater  number  aboard,  and  the  com- 
pany could  not  by  reasonable  diligence  have 
increased  the  number  of  cai'S,  then  the  plain- 
tiff could  only  recover  compensatory  dam- 
ages. If,  however,  *  *  ♦  the  defendant, 
by  reasonable  diligence,  could  have  ascer- 
tained that  the  number  of  cars  was  insuffi- 
cient, and  made  no  effort  to  supply  the  defi- 
cienc.v,  but,  regardless  of  its  duties  and  of 
tlie  rights  of  those  wliom  it  had  invited  to 
present  themselves  at  its  regular  station  for 
passage,  or  if,  having  room  for  additional 
persons,  it  passed  without  stopping,  this  dis- 
played a  gross  and  willful  disregard  of  the 
rights  of  the  plaintiff,  which  entitled  him  to 
recover  pimitive  damages."  This  is  sustained 
by  numerous  authorities  in  other  states. 
Heirn  v.  McCaughan,  32  Miss.  1;  Railroad 
Co.  V.  Hurst,  30  Miss.  6G0;  Silver  v.  Kent, 
00    Miss.    124;     Wilson    v.    Railroad    Co.,    03 


COMl'EXSATOUY  AND  EXK.MIM:ARY  DAMAGES. 


07 


Miss.  352;  Railroud  Co.  v.  Sellers,  a3  Ala.  9, 
9  South.  375;  3  Sutli.  Dnni.  §  937.  It  was 
urj?efl  on  the  arsuineiit  that  it  would  be  ditti- 
cult  often  to  decide  what  slate  of  faets  would 
or  would  not  constitute  a  willful  and  wanton 
disrejjard  of  statutory  duties.  ]?ut  that  does 
not  authorize  a  judicial  repeal  of  the  statute, 
either  in  whole  or  in  part.  It  must,  in  each 
case,  be  del  or  mined  whether  the  facts  proved 
show  a  "willful  and  wanton  disregard  of 
statutory  regulations,"  and,  if  they  do,  the 
jury  is  emjjowered  to  impose  exemjilary  dam- 
ages, subject  to  the  protective  supervision  of 
the  court  to  prevent  abuse  by  setting  aside 
the  verdict. 

But  it  was  further  argued  before  us  that, 
while  a  railroad  corporation  is  by  statute 
liable  for  "a  willful  violation"  of  the  regula- 
tions of  the  railroad  commission,  it  is  not  lia- 
ble for  "a  willful  and  wanton  violation  of 
statutory  regulations";  and  hence,  when  a 
train  with  several  vacant  seats  passes  its  reg- 
ular station  without  taking  on  a  passenger 
waiting  there,  the  liability  is  only  because  of 
the  indignity  offered  the  intending  passenger. 
But  it  will  be  noted  that  this  is  a  mere  sub- 
stitution of  words.  The  sole  indignity  of- 
fered him  is  the  willful  and  wanton  disregard 
of  his  rights  as  guarantied  by  the  statute 
(Code,  §  ll)(i3),  that  "sufficient  accommodation 
for  transportation  shall  be  afforded  at  the 
usual  sto])ping  places";  and  the  same  indig- 
nity is  equally  offered  him  by  the  violation 
of  the  same  statute  if  the  company  knows  in 
reasonable  time  tliat  the  number  of  cars  are 
insufficient,  and  can  supply  them,  and  fails 
to  do  so,  running  by  without  stopping,  though 
with  crowded  cars,  because  it  chose  not  to 
supply  enough.  The  duty  to  furnish  suffi- 
cient cars  is  clearly  stated  in  Branch  v.  Rail- 
road Co.,  77  N.  C.  347,  independently  of  the 
express  requirement  of  the  statute  (Code,  § 
19G3)  above  quoted.  In  the  present  case  the 
learned  judge  charged  the  jury,  in  accord- 
ance with  the  ruling  of  this  court,  that,  if  the 
defendant  was  guilty  of  willful  and  gross 
negligence,  the  plaintiff"  could  recover,  other- 
wise not;  and  further,  that  if  the  accident 
occurred,  which  they  could  not  have,  in  the 
ordinary  course  of  their  business,  foreseen 
and  provided  for,  this  would  not  be  willful 
negligence,  but.  "if  the  character  of  the  neg- 
ligence was  such  as  to  satisfy  the  jury  that 
the  defendant  did  not  care  or  was  indifferent 
as  to  whether  they  had  the  train  there  (to 
bring  the  passengers  home),  it  would  be  will- 
ful negligence."  It  was  in  evidence  that 
when  the  plaintiff,  who  held  a  return  ticket, 
applied  for  transportation,  the  official  in 
charge   gave   himself   no   concern   whatever. 


made  no  effort  to  have  the  plaintiff  brought 
home,  and  refused  the  use  of  the  hand  car. 
His  honor,  after  stating  correctly  and  more 
fully  what  facts  would  constitute  willful 
negligence  and  what  would  not,  instructed 
the  jury  that  only  in  the  event  they  found 
willful  negligence  could  the  plaintiff  recover. 
There  was  ample  evidence  to  submit  to  the 
jury  the  iiuiuiry  whether  or  not  there  was 
willful  negligence.  Both  authority  and  rea- 
son sustain  the  proposition  that  "the  liability 
of  a  railroad  company  for  exemplary  damages 
cannot  be  made  to  dejjond  on  the  ability  of 
the  corporation  to  earn  enough  money  to  keep 
its  road  in  such  condition  as  to  be  operated 
with  safety."  Railroad  Co.  v.  Johnson,  75 
Tex.  158,  1G2,  12  S.  W.  482;  Taylor  v.  Rail- 
road Co.,  48  N.  H.  304,  317.  If  the  company 
is  unwilling  or  unable  to  furnish  money  to 
run  its  trains  according  to  the  statutory  re- 
quirement, it  should  cease  to  hold  itself  out 
to  the  public  as  a  common  carrier. 

The  jury  having  found  that  there  was  a 
willful  violation  by  the  defendant  of  its  stat- 
utory duty  to  transport  the  plaintiff,  and  a 
wanton  disregard  of  the  plaintiff''s  rights  in 
that  respect,  it  is  not  the  province  of  t.iis  ap- 
pellate court  to  review  the  facts  and  disturb 
the  verdict. 

The  principle  involved  is  one  of  universal  in- 
terest. It  is  nothing  less,  when  reduced  to 
its  last  analysis,  than  whether  these  corpora- 
tions, primarily  created  for  the  convenience 
and  advantage  of  the  public,  with  the  in- 
cidental benefit  of  profit  to  their  owners,  are 
subject  to  exemplary  damages  when  they  will- 
fully and  wantonly  violate  the  statutes  pass- 
ed for  their  regulation  by  the  power  which 
created  them.  If  they  are  not,  then  clearly 
and  unmistakably  the  public  are  in  the  power 
and  at  the  mercy  of  the  arbitrary  will  of  cor- 
porations, which,  daily  aggregating  into  larger 
and  larger  masses,  are  powerful  beyond  any 
control  other  than  the  law.  And  if  they  possess 
the  power  of  violating  willfully  and  wanton- 
ly the  statutory  regidations  ijrescribed  for  the 
protection  of  the  public,  witliout  fear  of  pun- 
ishment by  the  imposition  of  exemplary  dam- 
ages at  the  hands  of  a  jury,  then  the  law- 
making power,  in  creating  them,  is,  like  the 
magician  in  the  Eastern  story,  evoking  a 
spirit  which  mastered  and  destroyed  hi  in. 
The  rights  of  the  people  are  too  much  at 
stake  in  maintaining  the  principle  that  rail- 
road corporations  are  liable  to  exemplary 
damages  for  the  "willful  violation"  of  stat- 
utes passed  for  their  regulation,  equally  with 
similar  violations  of  the  regulations  of  the 
raih'oad  commission,  for  any  denial  or  1  mita- 
tion  of  such  principles  to  pass  unnoticed. 


68 


COMriCXSATOIlY  AND  EXEMFLARY  DAMAGES. 


STACY  v;  PORTLAND  PUB.  CO.i 

(GcS  Me.  279.) 

Snpronie  .Judicial  Court  of  Maine.    June  7,  1808. 

Case  for  libel.  Defendaut  published  in  its 
paper,  uuder  the  head  of  "Personal,"  the  fol- 
lowiug:  "A  responsible  gentleman  of  Hal- 
lowell  informs  us  that  Secretary  of  State 
Stacy  was  recently  arrested  in  that  city  for 
drunkenness  and  disturbance.  A  ten-dollar 
note  quieted  the  affair."  The  plea  was  the 
general  issue  and  justification.  On  the  trial, 
plaintiff  requested  an  instruction  that,  if  the 
jury  found  that  the  article  was  published 
with  express  malice,  they  might  give  ex- 
emplary damages.  This  the  presiding  judge 
refused.  The  verdict  was  for  plaintiff;  dam- 
ages, one  dollar.  Plaintiff'  alleges  exceptions, 
and  moves  to  set  aside  verdict  for  inade- 
(juacy. 

O.  D.  Balder,  for  plaintiff.  T.  B.  Reed, 
for  defendants. 

PETERS,    J.      ***** 

The  plaintift"s  counst'l  earnestly  insists  that 
it  was  error  on  the  part  of  the  court  to  omit 
(after  request)  to  direct  the  jury  that  puni- 
tive damages  might  be  recovered  in  such  a 
case  as  this.  Taking  the  case  as  it  resulted, 
we  are  satisfied  that  the  plaintiff"  has  sus- 
tained no  injury  in  this  respect.  Without 
(iverruling  former  decisions,  this  court  can- 
not deny  that  punitive  damages  may  be  re- 
covered against  a  corporation  for  the  mali- 
cious conduct  of  its  servants  and  agents,  by 
a  person  injured  by  it.  To  the  facts  and 
findings,  however,  presented  in  the  case  at 
l)ar,  our  judgment  is  that  the  doctrine  con- 
tended for  has  no  reasonable  application. 
The  charge  against  the  plaintiff"  was  of  a 
serious  nature,  calculated  to  wound  his  sensi- 
bilities, and  to  degrade  him  in  his  personal 
character.  A  substantial,  but  not  a  full  and 
C!)mplete,  justification  of  the  charge,  was 
pleaded  by  the  defendants.  The  plaintiff 
was  allowed  to  recover  damages  for  the  in- 
jury "to  his  character  as  a  man,  a  citizen;  for 
mental  pain  and  suff'ering,  anguish,  morti- 
fication; and  for  loss  of  the  lienefits  of  pub- 
lic confidence  and  social  intercourse," — result- 
ing froim  the  publication.  The  jury  were 
permitted  to  add,  as  actual  damages,  for  any 
aggravation  of  these  elements  of  injury  bc- 
(■■■isioned  by  the  express  malice  of  the  person 
who  published  the  article  complained  of.  Tlie 
jui-y  assessed  nominal  damages  only,  the  ver- 
dict being  for  one  dollar.  The  legal  signifi- 
cation of  the  verdict  is,  either  that  there  was 
no  actual  and  express  malice  entertained  to- 
wards the  plaintiff  by  the  defendants'  agent, 
or  that,  if  there  was,  it  did  the  plaintiff 
no  injury.  There  is  no  room  for  punitive 
damages  here.  There  is  no  foundation  for 
them  to  attach  to  or  rest  upon.  It  is  said, 
in  vindication  of  the  theory  of  punitive  dam- 


1  Portion  of  opinion   (iiiiitted. 


ages,  that  the  interests  of  the  individual  in- 
jured and  of  society  are  blended.  Here  the 
interests  of  society  have  virtually  nothing  to 
blend  with.  If  the  individual  has  but  a 
noiminal  interest,  society  can  have  none.  Such 
damages  are  to  be  awarded  against  a  defend- 
ant for  punishment.  But,  if  all  the  individ- 
ual injury  is  merely  technical  and  theoretical, 
what  is  the  punishment  to  be  inflicted  for"? 
If  a  plaintiff,  upon  all  such  elements  of  in- 
jury as  were  open  to  him,  is  entitled  to  re- 
cover but  nominal  damages,  shall  he  be  the 
recipient  of  penalties  awarded  on  account  of 
an  injury  or  a  supposed  injury  to  others  be- 
side himself?  If  there  was  enough  in  the 
defense  to  mitigate  the  damages  to  the  indi- 
vidual, so  did  it  mitigate  the  daanages  to  the 
public  as  Avell.  Punitive  damages  are  the 
last  to  be  assessed,  in  the  elements  of  injury 
to  be  considered  by  a  jury,  and  should  be  the 
first  to  be  rejected  by  facts  in  mitigation. 
We  think  the  irresistible  inference  is  that,  if 
the  instruction  had  been  given  as  it  was  re- 
quested, the  verdict  would  not  have  been  in- 
creased thereby  to  the  extent  of  a  cent. 
There  may  be  cases,  no  doubt,  where  the  ac- 
tual damages  would  be  but  small,  and  the 
punitive  damages  large;  but  this  case  is  not 
of  such  a  kind.  It  Avould  have  been  proper 
in  this  case  for  the  presiding  justice  to  have 
informed  the  jury  that  if  the  actual  damage* 
were  nominal,  and  no  more,  they  need  not 
award  punitive  damages.  Any  error  in  the 
ruling  was  cured  by  the  verdict.  Gilmore  v.. 
Mathews,  G7  Me.  517. 

Some  other  points  appear  to  have  been 
raised  at  the  trial,  which  are  not  discussed 
in  the  very  full  and  able  brief  of  the  plain- 
tift""s  counsel,  and  we  may  very  well  regard 
them  as  now  waived.  A  motion  is  made 
against  the  verdict  as  too  small.  The  court 
rarely  interferes  with  a  verdict  in  a  case  of 
this  kind,  whether  moved  against  as  too  largi' 
or  too  small.  We  do  not  allow  the  motion. 
Motion  and  exceptions  overruled. 

APPLETON,  C.  J.,  and  WALTON,  BAR- 
ROWS, VIRGIN,  and  LIBBEY,  J.T.,  concur- 
red. 

NOTE.  To  tlio  same  effect,  see  Kuhu  v.  Itail- 
wav  Co.,  74  Iowa,  l:',7, 37  N.  W.  110;  and  Schip- 
pel  V.  Norton,  ;;8  Kan.  ~)iu.  10  Pac.  804.  Contra, 
see  Wilson  v,  Vaughn,  2."!  Fed.  2-2U.  and  Rail-  , 
road  Co.  v.  Sellers,  93  Ala.  9,  9  South.  377. 
where  the  court  says:  "(0)  There  are  respect- 
able authorities  which  appear  to  hold  that  ex- 
emplary damaucs  cannot  lie  aw;>rded  when  the 
actual  injury  is  purely  nominal,  the  theory  being 
that  as  exemplary  damages  are  laid  in  conserva- ' 
tion  of  the  interests  of  society,  which  for  this, 
purpose  are  considered  'as  blended  with  the  in- 
terests of  the  individual,'  where  the  individual  is 
injured  only  nominally  or  not  at  all  in  fact, 
though  his  ri.dits  are  violated,  'the  interests  of 
society  have  virtn.-dly  notldng  to  lilend  with,'  and 
hence^  'the  individual  having  hut  a  nominal  in- 
terest, society  can  have  none.'  etc.  Stacy  v. 
Publishing  Co.,  (!8  Me.  287.  This  view  is  s)ie- 
cious,  but,  we  ajiprehend,  not  sound.  'Hie  trui^ 
tlieory  of  ("M'mplary  damages  is  that  of  punish- 
ment, involving  tlie  ideas  of  retribution  for  Avill- 
ful  ndsconduct.  and  an  examiilo  to  deter  from  its- 


)0MPENSAT011Y  AND  EXEMPLARY  DAMAGES. 


W 


repetition.  Tlie  position  of  the  suprome  court  of 
Maine  can  be  sustained  in  principle,  it  seems  to 
lis,  only  by  assuming  that  which  is  manifestly 
untrue,  namely,  that  no  act  is  criminal  which 
<loes  not  indict  individual  injury  capable  of  be- 
ing measured  and  coiupcnsatcd  for  in  money. 
Many  acts  denounced  as  crime  by  our  statutes, 
or  by  the  commun  law,  involve  no  pecuniary  in- 
jury to  the  individual  against  whom  they  are 
directed,  and  which,  while  the  party  aggrieved 
could  not  recover  damages  as  compensation  be- 
yond a  merely  nominal  sum,  are  yet  punished  in 
the  criminal  courts,  and  may  also  be  punished  in 
civil  actions  by  the  imposition  of  'smart  money'; 
and,  on  the  same  principle,  acts  readily  conceiv- 
able which  involve  malice,  willfulness,  or  wanton 
and  reckless  disregard  of  the  rights  of  others, 


though  not  within  the  calendar  of  crime,  and  in- 
flicting no  pecuniary  loss  or  detriment,  measur- 
able by  a  money  standard,  on  the  individual,  yet 
merit  such  punishment  as  the  civil  courts  may 
inflict  by  the  imposition  of  exemplary  damages. 
And  upon  these  considerations  the  law  is.  and 
has  long  been,  settled  in  this  state  that  the  in- 
fliction of  actual  damage  is  not  an  essential  pred- 
icate to  the  imposition  of  exemplarv  damages. 
Parker  v.  Mise,  27  Ala.  480;  Teleu'raph  Co.  v. 
Henderson,  89  Ala.  510,  7  South.  4U>:  Railroad 
Co.  V.  Heddleston,  82  Ala.  218.  3  South.  53. 
See,  also,  1  Suth.  Dam.  748.  The  charges  re- 
quested by  the  defendant  to  the  effect  that  ac- 
tual damage  must  be  shown  before  punitive  dam- 
ages could  be  recovered  were  therefore  properly 
refused." 


70 


GENERAL  AND  SPECIAL  DAMAGES. 


STEVENSON  v.  SMITH  et  al. 
(28  Cal.  103.) 
Supreme  Court  of  California.    April,  1865. 
Appeal  from  district  court,  Second  judicial 
district.  Tehama  county. 

The  facts  are  stated  in  the  opinion  of  the 
court. 

George  Cadwalader,  for  appellant.  W.  S. 
Long,  for  respondents. 

SAWYER,  J.  This  is  an  action  to  recover 
a  mare  and  colt  seized  by  the  defendant 
(sheriff  of  Tehama  county)  under  an  attach- 
ment, and  damages  for  their  detention. 
Plaintiff  recovered  the  property.  Plaintiff 
moved  for  a;.new  trial  on  the  ground  that  cer- 
tain spodt^  damages,  claimed  to  have  been 
proved,'^^-e  not  found  for  him.  The  mo- 
tion was  denied,  and  the  plaintiff"  appeals 
from  the  order  denying  a  new  trial. 

The  appellant  claims  that  the  evidence 
shows  that  the  animals  were  placed  by  de- 
fendants in  fields  where  the  pasturage  was 
poor,  and  that  in  consequence  of  this  act 
they  lost  flesh  and  depreciated  in  value  to  the 
extent  of  five  hundred  dollars.  Also  that  the 
mare  was  a  valuable  brood  mare,  taken  to 
Tehama  county  for  the  purpose  of  being  bred 
to  a  particular  horse,  and  that  by  reason  of 
the  taking  and  detention  by  defendants  the 
breeding  season  was  lost,  whereby  a  further 
damage  was  shown  to  have  been  sustained 
to  the  amount  of  five  hundred  dollars,  and 
that  the  court  should  upon  the  evidence  have 
found  these  items  of  damage  for  plaintiff". 

On  examination  of  the  pleadings,  we  find 
no  averments  in  the  complaint  that  would  au- 
thorize the  recovery  of  the  items  claimed. 
These  damages  are  special,  and  the  facts  out 
of  which  they  arise  must  be  averred,  or  they 
cannot  be  recovered. 

Mr.  Chitty  says:  "Damages  are  either  gen- 
eral or  special.  General  damages  are  such  as 
the  law  implies,  or  presumes  to  have  accrued 
from  the  wrong  complained  of.  Special  dam- 
ages are  such  as  really  took  place,  and  are 
not  implied  by  law.  and  are  either  super- 
added to  general  damages  arising  from  an 
act  injurious  in  itself,— as  when  some  partic- 
ular damage  arises  from  the  uttering  of 
slanderous  words  actionable  in  themselves,— 
or  are  such  as  arise  from  an  act  indiff"ereut, 
and  not  actionable  in  itself,  but  only  injuri- 
ous in  its  consequences,"  etc.  1  Chit.  PI.  395. 
Again:  "It  does  not  appear  necessary  to 
state  the  former  description  of  the  damages 
in  the  declaration,  because  presumptions  of 
law  are  not  in  general  to  be  pleaded  or  aver- 
red as  facts,  etc.  *  *  *  But  when  the  law 
I  does  not  necessarily  imply  that  the  plaintiff 
sustained  the  damages  by  the  act  complained 
of,  it  is  essential  to  the  validity  of  the  dec- 
laration that  the  resulting  damage  should  be 


shown  with  particularity.  *  ♦  *  And 
whenever  the  damages  sustained  have  not 
necessarily  accrued  from  the  act  complained 
of,  and  consequently  are  not  implied  by  law, 
then,  in  order  to  prevent  surprise  on  the  de- 
fendant, which  might  otherwise  ensue  at  the 
trial,  the  plaintiff  must  in  general  state  the 
particular  damage  which  he  has  sustained,  or 
he  will  not  be  permitted  to  give  evidence  of 
it.  Thus  in  an  action  of  trespass  and  false 
imprisonment,  where  the  plaintiff  offered  to 
give  in  evidence  that  during  the  imprison- 
ment he  was  stinted  in  his  allowance  of  food, 
he  was  not  permitted  to  do  so,  because  the 
fact  was  not,  as  it  should  have  been,  stated 
in  the  declaration;  and  in  a  similar  action  it 
was  held  that  the  plaintiff"  could  not  give  ev- 
idence of  his  health  being  injured,  unless  spe- 
cially stated.  So  in  trespass  'for  taking  a 
horse,'  nothing  can  be  given  in  evidence 
which  is  not  expressed  in  the  declaration, 
and  if  money  was  paid  over  in  order  to  re- 
gain possession,  such  payment  should  be  al- 
leged as  special  damages."    Id.  396. 

The  complaint  in  this  case  only  alleges  the 
ownership  of  the  animals,  the  value,  the 
wrongful  taking  and  detention,  the  demand, 
and  that  plaintiff  "has  sustained  damages  by 
reason  of  such  wrongful  taking  and  detention 
of  said  chattels  and  property  in  the  sum  of 
one  thousand  dollars." 

From  these  facts  alone  the  law  does  not 
imply  either  of  the  items  of  damages  claimed 
to  have  been  proved.  The  first  item  is  not 
even  consequential  upon  any  of  the  facts  al- 
leged, but  results  from  other  acts  of  defend- 
ants while  the  animals  were  in  his  posses- 
sion. And  the  second  item  of  damages 
would  not  necessarily  r.sult  from  a  mere  tak- 
ing and  detention.  These  damages  depend 
upon  an  extraordinary  value  of  the  animal 
for  a  particular  purpose,  and  upon  the  spe- 
cial use  to  which  she  was  capable  of  being 
applied.  The  facts  out  of  which  these  items 
of  special  damages  arise  must  be  alleged  in 
the  complaint,  or  they  cannot  be  recovered. 
They  are  not  alleged,  and  are,  therefore,  not 
embraced  within  the  issues  to  be  tried.  For 
this  reason,  if  for  no  other,  the  plaintiff  is 
not  entitled  to  judgment  for  such  items  of 
danuiges.  There  was,  then,  no  .error  in  not 
finding  for  plaintiff  on  these  points. 

The  only  other  point  made  by  appellant  is, 
that  the  court  erred  in  not  giving  plaintiff 
costs.  There  is  no  doubt  in  our  minds  that 
the  plaintiff"  was  entitled  to  costs.  But  this 
error  in  no  way  affects  the  finding,  and  is  not 
a  ground  for  new  trial.  The  error  cannot, 
therefore,  be  corrected  on  appeal  from  an  or- 
der denying  a  new  trial.  The  proper  mode 
of  reviewing  and  correcting  this  error  is  on 
appeal  from  the  judgment,  but  no  such  ap- 
peal has  been  taken  in  this  case. 
Judgment  affirmed. 


GENERAL  AND  SPECIAL  DAMAGES. 


71 


WABASH  WESTERN  RY.  CO.  v.   FRIED- 
MAN. 

(30  N.  E.  353,  34  N.  E.  1111,  and  146  111.  583.) 

Supreme   Court   of  Illinois.     March   24,   1892. 

Appeal  from  appellate  court.  First  district. 

Action  by  Oscar  J.  Friedman  against  the 
Wabash  Western  Railway  Company  to  recov- 
er damages  for  pei'sonal  injuries.  Plaintiff 
obtained  judgment,  which  was  affirmed  by 
the  appellate  court.  Defendant  appeals.  Re- 
versed. 

George  B.  Burnett  (Black  &  Fitzgerald,  of 
counsel),  for  appellant.  Page,  Eliel  &  Rosen- 
thal (J.  W.  Duncan,  of  counsel),  for  appellee. 

CRAIG,  J.  This  was  an  action  brought  by 
Oscar  J.  Friedman  against  the  Wabash  West- 
ern Railway  Company  to  recover  damages 
for  a  personal  injury  received  on  the  1st  day 
of  May,  1888,  while  plaintiff  was  a  passenger 
on  the  defendant's  line  of  road,  running  from 
Moberly,  Mo.,  to  Ottumwa,  Iowa.  The  fol- 
lowing map  shows  the  line  of  defendant's 
road.  The  accident  which  resulted  in  the  in- 
jury complained  of  occurred  in  the  state  of 
Missouri,  between  Kirksville  and  Gleuwood 
Junction,  two  stations  indicated  on  the  map. 


MlV^ 


Distance  from  Centralia  to  Moberly,  24  miies. 
Distance  from  Moberly  to  Ottumwa,  131  miles. 
Distance  from  Kirksville  to  Glenwood  Junction 
25  miles. 

The  declaration  contained  five  counts,  but 
they  are  all  substantially  alike.  In  the  second 
count,  it  is  averred  that  defendant  was  on 
May  1,  1888,  operating  a  railroad  from  Kirks- 
ville, Mo.,  to  Glenwood  Junction,  Mo.,  and 
operating  trains  for  the  conveyance  of  pas- 
sengers for  reward;  "and  the  said  plaintifC, 
at  said  Kirksville,  then  became  and  was  a 
passenger  in  a  certain  train  of  the  said  de- 
fendant on  the  said  railroad,   to  be  carried. 


and  was  accordingly  then  being  carried,  in 
the  said  train,  from  Ku-ksville  to  said  Glen- 
wood Junction,"  for  reward,  etc.;  that  it 
became  and  was  the  duty  of  the  said  defend- 
ant to  properly  and  safely  construct  and 
maintain  the  track  and  road-bed  of  said  rail- 
way, but  the  defendant  so  negligently  con- 
structed and  maintained  the  same  that  the 
same  were  not  then  safe  for  the  use  of  pas- 
sengers on  defendant's  trains,  "and  the  rails 
of  said  track  of  said  raih-oad  were  then  and 
there  in  bad  repair  and  condition,  and  a  cer- 
tain rail  in  the  said  track  had  become  broken 
by  reason  of  the  said  negligence  of  tlie  said 
defendant,  and  thereby  a  certain  car  then  be- 
ing in  the  said  train,  and  of  a  sort  commonly 
called  'sleeping-cars,'  was  then  and  there 
thrown  with  great  force  and  violence  from 
and  off  the  said  track;"  and  plaintiff,  being  then 
and  there  asleep  and  in  the  exercise  of  due 
care,  was  thrown  from  the  berth  in  said  car, 
in  which  he  was  sleeping,  with  great  force 
and  violence,  across  the  car,  and  into  the  op- 
posite berth,  "by  means  whereof,  then  and 
there,  the  spine  and  spinal  column,  including 
the  spinal  cord,  of  the  said  plaintiff,  became 
and  were  greatly  bruised,  hurt,  and  iujm-ed, 
and  the  said  plaintiff  suffered  and  incurred 
an  injury  of  the  kind  known  as  'concussion 
of  the  spine,'  "  whereby  he  incuired  expendi- 
tures, in  endeavoring  to  be  ht-aied,  amounting 
to  .fS.OOO,  and  became  sick,  lame,  etc.,  "from 
thence  hitherto,"  suffering  great  pain  and  be- 
ing prevented  from  attending  to  his  business, 
and  thereby  losing  profits,  etc.  In  the  con- 
clusion of  the  declaration  the  plaintiff  claimed 
damages  amounting  to  $50,000.  The  defend- 
ant pleaded  the  general  issue,  and  on  a  trial 
before  a  jury  the  plaintiff  recovered  $30,000, 
and  the  judgment,  on  appeal  to  the  appellate 
court,  was  affirmed. 

It  will  be  observed  that  in  each  count  of 
the  declaration  the  plaintiff,  in  stating  where 
the  relation  of  passenger  and  common  carrier 
commenced,  and  where  such  relation  existed 
between  the  plaintiff"  and  the  defendant, 
averred  as  follows:  'And  the  said  plaintiff', 
at  said  Kirksville,  then  became  and  was  a 
passenger  on  a  certain  train  of  the  said  de- 
fendant on  the  said  railroad,  to  be  carried, 
and  was  accordingly  then  being  carried,  in 
the  said  train,  from  Kirksville  to  said  Glen- 
wood Junction,"  for  reward,  etc.  No  evidence 
was  introduced  on  the  trial  that  the  plain- 
tiff became  a  passenger  at  Kirksville  for 
Glenwood  Junction ;  but  the  plaintiff  testified 
that  he  took  the  sleeper  at  Moberly  to  go  to 
Ottumwa,  and  that  he  had  a  ticket  which 
read,  from  Moberly  to  Ottumwa,  which  he 
had  purchased  at  Moberly  in  the  fall  of  ISGT. 
The  testimony  offered  for  the  purpose  of 
proving  the  averment  of  the  declaration  was 
objected  to  on  the  ground  of  a  variance  be- 
tween the  evidence  and  the  declaration;  but 
the  court  overruled  the  objection,  and  allow- 
ed the  evidence  to  be  inti'oduced.  Upon  the 
question  of  variance  the  defendant  asked 
the    court   to    instruct    the   jury    as    follows: 


GENERAL  AND  SPECIAL  DAMAGES. 


'"TLte  averment  in  plaintiff's  declaration  that 
lie  became  a  passenger  in  the  train  of  defend- 
ant at  Kirksville,  Mc,  to  be  carried  from 
said  Kirksville  to  Glenwood  Junction,  is 
material,  and  must  be  proved  as  alleged; 
and  if  the  jury  believe  from  the  evidence 
that  said  plaintiff  did  not  at  the  time  in  ques- 
tion become  a  passenger  in  said  train  of  de- 
fendant at  said  Kirksville,  to  be  carried  to 
said  Glenwood  Junction,  then  the  jury  will 
find  for  defendant,  regardless  of  all  other 
questions  in  the  case."  But  the  court  refused 
to  give  the  instiniction  as  prayed,  but  quali- 
fied it  by  adding  as  follows,  to-wit:  "But  if 
it  appear  from  the  evidence  that  plaintiff  was 
a  passenger  on  the  train  of  the  defendant 
between  tlie  points  mentioned,  traveling  from 
a  point  south  of  said  Kirksville  to  a  "point 
beyond  Glenwood  Junction,  then  the  aver- 
ment in  the  plaintiff's  declaration  is  suffi- 
ciently made  out."  It  may  be  said  that  the 
question  involved  is  a  technical  one,  and 
hence  not  entitled  to  that  consideration  which" 
a  court  should  give  to  a  question  which 
goes  to  the  merits  of  an  action.  The  plaintiff 
had  the  right,  when  the  question  was  raised, 
to  amend  his  declaration,  and  thus  obviate 
the  difficulty;  but  he  saw  proper  to  take 
another  course,  and  he  occupies  no  position 
now  to  complain,  should  the  rules  of  law 
that  control  in  such  cases  be  strictly  en- 
forced against  him.  Bat,  while  the  ques- 
tion involved  may  be  regarded  somewhat 
technical,  still  it  will  be  remembered  that 
the  plaintiff  is  seeking  to  recover  a  lai'ge 
sum  of  money,  and  the  defendant  has  the 
right  to  demand  and  insist  that  the  grounds 
upon  which  the  plaintiff  claims  a  right  of 
recovery  should  be  clearly  and  concisely 
slated,  and  that  the  case  made  on  the  declara- 
tion should  be  proven  as  laid.  If  a  plaintiff 
may  allege  in  his  declaration  one  ground  of 
recovery,  and  on  the  trial  prove  another,  a 
defendant  never  could  be  prepared  for  trial. 
One  great  object  of  a  declaration  is  to  notify 
the  defendant  of  the  nature  and  character 
of  the  plaintiff's  demand,  so  that  he  may  be 
able  to  prepare  for  a  defense;  but  if  one 
ground  of  action  may  be  alleged,  and  another 
proven,  a  declaration  would  be  a  delusion, 
and,  instead  of  affording  a  defendant  notice 
of  what  he  was  called  upon  to  meet,  it  would 
be  a  deception.  Here  the  plaintiff  claimed 
that  tiie  relation  of  passenger  and  common 
carrier  existed  between  him  and  the  defend- 
ant, and  that  the  defendant  owed  him  a  duty 
growing  out  of  that  relation.  In  speaking  of 
a  declaration  in  such  a  case.  Chitty  on 
Pleading  says:  "When  the  plaintiff's  right 
consists  in  an  obligation  on  the  defendant  to 
observe  some  particular  duty,  the  declaration 
must  state  the  nature  of  such  duty,  which 
we  have  seen  may  be  founded  either  upon  a 
contract  between  the  parties  or  on  the  obli- 
gation of  law  arising  out  of  the  defendant's 
particular  character  or  situation,  and  the  de- 
fendant must  prove  such  duty  as  laid;  and 
a  variance  will,  as  in  actions  on  contract,  be 


fatal."  Chit.  PI.  3S2.  The  same  author  also 
says:  "In  an  action  on  the  case  fouud'sd  on 
an  express  or  implied  contract,  as  against  an 
attorney,  agent,  cai-rier,  innkeeper,  or  other 
bailee,  for  negligence,  etc.,  the  declaration 
must  correctly  state  the  contract  or  the  par- 
ticular duty  or  consideration  from  which  the 
liability  results,  and  on  which  it  is  founded; 
and  a  variance  in  the  description  of  a  con- 
ti'act,  though  in  an  action  ex  delicto,  may  be 
fatal,  as  in  an  action  ex  contractu.  The  dec- 
laration in  such  case  usually  begins  with  a 
statement  of  the  particular  profession  or 
situation  of  the  defendant  and  his  retainer, 
and  consequent  duty  or  liability.  The  decla- 
ration will  be  defective  if  it  does  not  show 
that  by  express  contract  or  by  implication 
of  law,  in  respect  to  the  defendant's  particu- 
lar character  or  situation,  etc.,  stated  by  the 
plaintiff,  the  defendant  was  bound  to  do  or 
omit  the  act  in  reference  to  which  he  is 
charged."    Chit.  PI.  p.  384. 

It  may,  however,  be  said  that  the  state- 
ment in  the  declaration  of  the  point  from 
which  and  to  which  the  plaintiff"  was  be- 
ing carried  was  mere  inducement,  and  need 
not  be  proved  as  laid.  Upon  a  question  of 
this  character,  Chitty  on  Pleading  (page  292) 
says:  "In  general,  however,  every  allega- 
tion in  au  inducement  which  is  material,  and 
not  impertinent  and  foreign  to  the  cause, 
and  Avhich,  consequently,  cannot  be  rejected 
as  surplusage,  must  be  proved  as  alleged, 
and  a  variance  Avould  be  fatal;  and  conse- 
quently great  attention  to  the  facts  is  neces- 
sary in  framing  the  inducement,  and  care 
must  be  taken  not  to  insert  any  unnecessary 
allegation."  If,  therefore,  the  allegation  is 
to  be  regarded  as  inducement,  it  was  neces- 
sary to  prove  it  as  alleged.  And  at  page  38.") 
the  author  further  says:  "It  is  also  a  iiile 
that  if  a  necessary  inducement  of  the  plain- 
tiff's right,  etc.,  even  in  actions  for  torts,  re- 
late to  and  describe  and  be  founded  on  a 
matter  of  contract,  it  is  necessai-y  to  be 
strictly  correct  in  stating  such  contract;  it 
being  matter  of  description.  Thus,  even  in 
case  against  a  carrier,  if  the  termini  of  the 
journey  which  was  to  be  undertaken  be  mis- 
stated, the  variance  will  be  fatal  Here  tbe 
allegation  in  the  inducement  relates  to  mat- 
ter of  description."  Harris  v.  Rayner,  8 
Pick.  541,  is  a  case  in  point.  The  action  was 
brought  to  recover  for  an  injuiy  sustained 
by  the  oversetting  of  a  stage-coach.  The 
plaintiff  alleged  in  his  declaration  that  he 
paid  defendants,  for  his  passage  in  their 
stage  from  Albany  to  Boston,  $10,  the  usual 
fee  for  said  i>assage,  and  defendants,  in  con- 
sideration thereof,  undertook  and  promised 
carefully  to  transport  plaintiff  in  said  pass- 
age from  Albany  to  Boston.  In  support  of 
the  declaration,  plaintiff  proved  that  he  was 
in  a  stage-coach  from  "Worcester  to  Boston, 
and  that  just  as  he  an-ived  at  Boston  the 
coach  was  overset  by  the  carelessness  of  the 
driver,  and  he  was  thereby  injured.  It  was 
held   that   the   evidence   did   not   prove   the 


GENEIiAl.  AND  SPECIAL  DAMAGES. 


73 


<-outrat't   set  out  iu   the  declanitiou,  and  iu 
liassing  upon  this  point  the  court  said:    "We 
think   there   was   no  sufficient  proof  at  the 
trial  of  the  contract  as  alleged  in  the  declara- 
tion.    The  declaration  alleges  a  contract  on 
the  part  of  the  defendants  to  transport  the 
plaintiff 'from  Albany  to  Boston.     The  proof 
was   that  the  plaintiff   rode   in  defendants' 
stage  from   Worcester   to   Boston;    and.   al- 
though this  is  part  of  the  route  from  Albany 
to  Boston,  yet  it  is  part,  also,  of  many  other 
lines  of  travel.     So  that  the  contract  as  al- 
leged   remains    without    proof."     In    Tucker 
T.  Cracklin,  2  Starkie,  3S5,  and  in  Railroad 
&  Banking  Co.  v.  Tucker,  79  Ga.  128,  4  S.  E. 
■5,  actions  were  brought  against  carriers  for 
the  loss  of  goods;    and  iu  each  case  it  was 
held  that  a  variance  between  the  proof  and 
allegation  as  to  the  termini  of  the  carriage 
was   fatal.     In   Phillips,    Ev.    (volume  3,   p. 
268,)  the  author  says:     "The  plaintiff  will  be 
nonsuited  if  the  termini  of  the  journey  are 
not  correctly  set  forth."     In  Railroad  Co.  v. 
Sutton,  53  111.  oB-S,  tJie  point  was  made  that 
an   aveiinent   in   the  declaration   of   defend- 
ant's  undertaking   to    convey   the    plaintiff 
from  W^est  Urbana  to  Tolono  is  not  sustained 
by  proof  of  an  undertaking  to  convey  from 
Champaign  City  to  Tolono.     In  disposing  of 
the    question  of    variance,   it    is  said:     "It 
would  appear  from  the  testimony  that  West 
Urbana  and  Champaign  City  are  one  and  the 
same  place;  consequently,  there  was  no  vari- 
ance."    The  averment  in  plaintiff's  declara- 
tion that  he  became  and  was  a  passenger  at 
Kirksville,  to  be  carried  to  Glenwood  Junc- 
tion, for  reward,  was,  in  effect,  a  statement 
that  he  took  the  defendant's  train  at  Kirks- 
ville for  Glenwood  Junction,  and  that  he  had 
paid  or  was  ready  to  pay  his  fare  from  one 
point  to  the  other  when  called  upon,  where- 
upon   there    was    an    implied    contract    on 
the  part  of  the  railway  company  to  safely 
carry  him  from  one  point  to  the  other.    We 
think  it  plain  that  the  averment  in  plaintiff's 
declaration  was  not  sustained  by  proof  that 
he  became  a  passenger  at  Moberly  for  Ot- 
tumwa.     It  may  be  true  that  plaintiff  stat- 
ed  more  in  his  declaration   than   he  might 
have  stated;  that  he  might  have  relied  upon 
an  allegation  that  he  was  a  passenger  upon 
defendant's  cars,  being  carried  for  reward, 
without  stating  definitely  the  termini  of  his 
journej'   on   defendant's  line  of  road.     But, 
having  gone  into  detail  in  his  allegation,  the 
law    requires   him    to    prove    them    as   laid. 
What  is  said  in  Bell  v.  Senneff,  83  111.  125, 
is  in  point  here:     "As  a  general  rule  a  party 
is  required  to   prove   the  averments  of   his 
pleadings  as  he  mak^s  them.     He  may  aver 
more   than  is  required;    but,   as  a   general 
rule,  he  must  prove  them,  although  unneces- 
sarily made."     In  Derragon  v.  Rutland,  58 
Vt  128,  3  Atl.  332,  it  was  held  that  evei-y 
averment  which  the  pleadings  make  material 
as  a  descriptive  part  of  the  cause  of  action 
must  be  proved  as  alleged;    and  any  vari- 
ance  which    destroys   the   legal    identity    of 


the  matter  or  thing  averred  with  the  matter 
or  thing  proved  is  fatal.  In  Stale  v.  Copp, 
15  N.  H.  212,  it  is  said:  "It  is  a  most  gen- 
eral rule  that  no  allegation  which  is  descrip- 
tive of  the  identity  of  that  which  is  legally 
essential  to  the  claim  or  charge  can  be  re- 
jected." See,  also,  1  Phillips,  Ev.  pp.  709, 
710;  Stoph.  PI.  p.  124,  appendix.  Here  the 
plaintiff  was  bound  to  allege  that  he  was  a 
passenger  on  defendant's  train  of  cars  for 
reward.  This  Avas  material,  and  the  fuilher 
averment  that  he  became  a  passenger  at 
Kirksville  for  Glenwood  Junction  was  descrip- 
tive of  the  identity  of  that  which  was  legally 
essential.  It  could  not  be  rejected  or  disre- 
garded. In  conclusion,  we  think  it  plain, 
under  the  authorities,  that  there  was  a  vari- 
ance between  the  proof  and  the  declaration; 
and  the  court  erred  in  the  admission  of  the 
evidence,  and  in  the  modification  of  defend- 
ant's instractiou. 

On  the  trial  the  plaintiff  was  permitted, 
against  the  objection  of  the  defendant,  to 
introduce  evidence  tending  to  prove  that 
the  plaintiff  at  the  time  of  the  injury  was 
receiving  a  compensation  for  his  services 
as  a  traveling  salesman  of  $3,000  per  annum. 
The  declaration  contained  no  allegation  of 
any  special  contract  or  engagement  of  the 
plaintiff  with  any  person  under  which  he 
might  earn  money  for  his  sei'vices.  In  Rail- 
way Co.  V.  Klauber,  9  111.  App.  613,  in  dis- 
cussing a  question  of  this  character  it  is 
said:  "Neither  of  these  allegations  points 
to  any  damages  growing  out  of  or  depending 
upon  the  peculiar  circumstances  or  business 
of  the  defendant.  In  Tomlinson  v.  Derby, 
43  Conn.  562,  the  plaintiff  was  injured  by 
means  of  a  defective  highway,  and  his  allega- 
tion was  that  he  was  thereby  'prevented  from 
transacting  his  ordinary  business;'  and  it 
was  held  that,  under  such  allegation,  he 
could  not  show  that  he  was  earning  i^lUO  a 
month  in  calling  and  sawing  timber.  So, 
in  Taylor  v.  Munroe,  43  Conn.  36,  under  a 
similar  allegation,  it  was  held  that  the  plain- 
tiff could  not  show  that  she  was  a  button- 
maker,  and  what  wages  she  earned  in  that 
business.  In  City  of  Chicago  v.  O'Brennan, 
65  111.  160,  the  plaintiff  brought  suit  for  an 
injury  caused  by  the  falling  of  a  portion  of 
the  brick  and  plastering  in  the  common  coun- 
cil chamber  in  the  city.  The  allegation  in 
the  declaration  was  that  'the  plaintiff',  who 
was  pursuing  his  occupation  as  journalist,' 
was  injured,  etc.,  'and  thereby  the  plaintiff, 
as  lawyer,  lecturer,  and  journalist,  became 
and  was  sick,  sore,  and  incapacitated  fi*om 
attending  to  his  business,  and  so  continued 
for  a  long  time,  to-wit,  for  two  months;  and, 
as  regards  plaintiff's  profession  as  a  lecturer, 
he  has  been  almost  wholly,  ever  since,  dis- 
abled from  pursuing  it.'  It  was  held  that 
under  these  allegations  the  plaintiff  could 
not  give  in  evidence  the  fact  of  a  particular 
engagement  to  lecture  in  Virginia,  and  the 
probable  gains  thereof.  The  court  say:  'In 
order  to  subserve  the  ends  of  good  pleading, 


74 


GENERAL  AND  SPECIAL  DAMAGES. 


which  are  to  apprise  the  opposite  party  of 
the  nature  of  the  claim,  and  prevent  surijrise, 
it  was  necessai-y  that  these  special  damages, 
and  the  facts  on  which  they  were  based, 
should  have  been  set  out  in  the  declaration.'  " 
Baldwin  v.  Railroad  Corp.  4  Gray,  333.  City 
of  Bloomington  v.  Chamberlain,  104  111.  272, 
is  also  a  case  in  point.  There  the  admitted 
evidence  was  held  not  to  be  erroneous,  but 
the  ruling-  was  placed  on  the  express  ground 
that  the  evidence  was  not  as  to  the  loss  of 
profits  of  a  particular  engagement.  Had  the 
evidence  gone  to  that  extent,  as  is  the  case 
here,  it  is  plainly  laid  down  that  the  evidence 
would  have  been  erroneous,  as  held  in  City 
of  Chicago  v.  O'Brennan,  G5  111.  IGO.  This 
is  apparent  from  what  is  said  in  the  opinion 
of  the  court  on  page  274.  We  think  the  rule 
established  in  the  cases  cited  is  the  correct 
one,  and  the  court  erred  in  the  admission  of 
the  evidence.  It  cannot  be  said  that  the 
error  was  a  harmless  one,  as  the  evidence 
was  of  a  character  calculated  to  produce  on 
the  minds  of  the  jury  an  impression  that  the 
plaintiff,  on  account  of  his  capacity  to  earn 
a  large  salary  before  the  injury,  which  he 
had  lost  by  the  accident,  and  hence  should 
recover  large  damages. 

It  may,  however,  be  said  that  the  error 
was  cured  by  an  instruction  giveu  by  the 
court  as  follows:  "The  court  permitted  the 
testimony  of  what  plaintiff  was  earning  at 
the  time  of  the  injury  charged.  This  testi- 
mony was  admitted  for  no  other  purpose 
than  to  show  plaintiff's  capacity  to  earn 
money,  and  must  not  be  considered  in  any 
respect  as  a  measure  of  damages."  It  is  not 
entirely  clear  what  the  instruction  means. 
While  the  court  directed  the  jury  that  the 
evidence  was  not  to  be  considered  as  a  meas- 
ure of  damage  the  court  failed  to  point  out 
what  use  they  should  make  of  the  evidence. 
The  court  ruled,  when  the  evidence  was 
offered,  that  it  was  competent  for  the  con- 
sideration of  the  jury.  That  ruling  was 
never  changed.  The  evidence  was  allowed 
to  remain  with  the  jury  for  their  considera- 
tion, and  it  could  have  no  other  effect  than 
to  swell  the  damages.  Had  the  court,  when 
It  was  ascertained  that  an   error  had  been 


committed  in  admitting  it,  excluded  the  evi- 
dence entirely  from  the  consideration  of  the 
jury,  the  error  would  in  a  great  measure 
have  been  removed;  but  that  course  was  not 
pursued.  The  instruction  did  not,  in  our 
judgment,  cure  the  error.  For  the  errors 
indicated  the  judgment  of  the  appellate  and 
cii'cuit  courts  will  be  reversed,  and  the  cause 
remanded. 

(Oct.  23,  1893.) 

MAGRUDER,  J.,  (dissenting.)  It  seems  to 
me  that  the  petition  for  rehearing  in  this 
case  has  demonstrated  beyond  question  the 
right  of  the  appellee  to  a  rehearing.  First, 
the  declaration  is  sufficient  as  a  declaration 
upon  the  common-law  liability  of  the  carrier; 
second,  the  declaration  alleges  that  the  plain- 
tiff "was  hindered  and  prevented  from  trans- 
acting and  attending  to  his  business  and 
affairs,  and  lost  and  was  deprived  of  divers 
great  gains,  protlts,  and  compensations, 
which  he  might  and  otherwise  would  have 
made  and  acquired."  This  was  a  sufficient 
allegation  of  special  damage  to  justify  the 
admission  of  evidence  that  plaintiff"  at  the 
time  of  the  injury  was  receiving  a  compensa- 
tion for  his  services  as  a  traveling  salesman 
of  $3,000  per  annum,  under  the  decision  made 
in  City  of  Bloomington  v.  Chamberlain,  104 
m.  268.  In  the  latter  case  the  allegation  in 
the  first  count  of  the  declaration  was  that 
"plaintiff"  was  hindered  from  transacting  her 
business  and  affairs  and  deprived  of  large 
gains  and  profits,  which  she  otherwise  would 
have  earned,"  and,  in  the  second  count,  "that 
she  had  been  rendered  unable  to  earn  or  make 
for  herself  a  living,  and  had  been  depriv- 
ed of  large  gains  and  profits  which  she  other- 
wise would  have  earned."  Under  these  al- 
legations the  plaintiff  was  there  permitted 
^to  testify  that  she  had  taught  school  at 
$50  per  month.  If  the  law  is  a  science  of 
precedents,  no  instance  can  be  found  where 
a  precedent  so  exactly  fits  a  subsequent  state 
of  facts  as  the  Chamberlain  Case  fits  the 
facts  disclosed  by  the  record  in  the  case  at 
bar  upon  the  second  point  here  designated. 

BAILEY,  C.  J.,  and  BAKER.  J.,  concur. 


GENERAL  AND  SPECIAL  DAMAGES. 


75 


HEISTER  V.  LOOMIS. 
(10  N.  W.  61),  47  Mich.  16.) 
Supreme  Court  of  Michigan.    Oct.  12,  1881. 
Error  to  circuit  court,  Baton  county. 

Crane  &  Dodge  and  Michael  Kenny,  for 
plaintiff  in  error.  Henry  A.  Shaw,  for  de- 
fendant in  error. 

COOLEY,  J.  Loomis  sued  Hoister  in  tres- 
pass for  an  assault  and  battery.  The  evi- 
dence tended  to  show  that  on  the  8d  day  of 
August,  1877,  Heister,  with  some  other  per- 
sons, suddenly  came  upon  the  plaintiff,  and 
with  words  such  as,  "I  have  got  you  where 
I  want  you  now,"  "We'll  give  you  what  you 
deserve,"  proceeded  to  strike  and  kick  him 
until  he  was  seriously  injured.  On  the  cross- 
examination  of  the  plaintiff",  defendant  sought 
to  show  that,  on  the  previous  Sunday  even- 
ing, in  passing  his  house,  the  plaintiff  had 
stopped  in  front  of  it,  and  used  vile  and 
abusive  language  to  his  wife.  Repeated 
questions  put  for  this  purpose  were  objected 
to  by  the  plaintiff,  and  ruled  out.  This  rul- 
ing was  correct.  The  language  attributed  to 
the  plaintiff  was  exceedingly  provoking,  and, 
if  a  battery  had  followed  immediately,  a 
jury  might  possibly  have  excused  it.  or  dealt 
with  it  leniently.  But  the  law  does  not  and 
cannot,  consistently  with  the  safety  of  society, 
admit  the  provocation  of  words  as  an  excuse 
for  blows  given  after  the  blood  has  had  time 
and  opportunity  to  cool.  To  do  so  would  be 
to  encourage  parties  injured,  or  thinking 
themselves  injured,  by  the  misconduct  of 
others,  to  take  into  their  own  hands  the  pun- 
ishment of  the  offender;  and  violence  would 
beget  violence,  as  each  party  measured  out 
according  to  the  vehemence  of  his  passion 
the  punishment  which  he  thought  or  imagin- 
ed his  enemy  deserved.  The  safer  view  for 
society  and  the  violated  law  is  to  consider 
the  fact  that  a  battery  has  been  committed 
in  revenge  for  a  previous  wrong  as  an  aggra- 
vation of  the  fault,  instead  of  an  excuse  for 
it. 

The  most  important  question  in  the  case  is 
whether  the  court  correctly  admitted  certain 
evidence  of  special  damages.  The  declara- 
tion averred  that  the  plaintiff",  because  of 
the  wounds,  bruises,  and  injuries  inflicted 
upon  him  by  the  defendant,  "was  greatly 
hindered  and  prevented  from  doing  and  per- 
forming his  work  and  business,  and  looking 
after  and  attending  his  necessary  affairs  and 
avocations,  for  a  long  space  of  time,"  etc. 
The  plaintiff  testified  that  his  business  was 
that  of  a  farmer;  and,  under  objection,  he 
was  permitted  to  state  that  his  farm  was  a 
grass  farm:  that,  when  assaulted,  he  was 
about  half  through  cutting  his  hay;  that  he 
was  bothered  some  about  help;  and  that  the 
cutting  was  delayed  because  of  his  injury; 
and  that  his  crop  of  hay  was  damaged  in 
consequence  at  least  $50.  The  defendant  con- 
tends that  this  evidence  of  injury  to  his 
hay   was   inadmissible,   because   the  declara- 


tion contained  no  special  averments  which 
would  fairly  apprise  the  defendant  of  the 
purpose  to  offer  it. 

We  have  been  very  liberal  in  this  state  in 
receiving  evidence  of  special  injuries  when 
the  declaration  averred  them;  much  more  so 
than  the  courts  of  some  other  states.  The 
cases  of  Chandler  v.  Allison,  10  Mich.  400, 
Allison  V.  Chandler,  11  Mich.  .542,  Gilbert  v. 
Kennedy,  22  Mich.  117,  and  Welch  v.  Ware, 
32  Mich.  77,  will  sufficiently  attest  the  fact. 
The  dift'erence  in  the  rules  applicable  in  cases  / 
of  contract  and  tort  has  also  been  carefully  ' 
marked  and  emphasized.  Where  only  a 
breach  of  contract  is  involved,  the  defendant 
is  not  to  be  made  liable  for  damages  beyond 
what  may  fairly  be  presumed  to  have  been 
contemplated  by  the  parties  at  the  time  the 
contract  was  entered  into.  The  damage  al- 
lowed in  such  cases  must  be  something  which 
could  have  been  foreseen  and  reasonably  ex- 
pected, and  to  which  the  defendant  can  be 
deemed  to  have  assented,  expressly  or  im- 
pliedly, by  entering  into  the  contract.  Borille, 
O.  J.,  in  Sawmill  Co.  v.  Nettleship,  L.  R.  3 
O.  P.  499;  Hadley  v.  Baxendale,  9  Exch. 
344;  Hopkins  v.  Sanford,  38  Mich.  611.  But 
in  cases  of  tort  the  plaintiff"  does  not  assist 
in  making  the  case;  it  is  made  for  him 
against  his  will  by  a  party  who  chooses  his 
own  time,  place,  and  manner  of  committing 
the  Avrong;  and  if  the  nature  of  the  case 
which  he  thus  makes  up  is  such  that  the 
elements  of  injury  are  uncertain,  and  there 
is  difficulty  in  arriving  at  the  just  measure 
of  redress,  the  consequences  should  fall  upon 
the  wrongdoer.  "To  deny  the  injured  party 
the  right  to  recover  any  actual  damages  in  / 
such  cases,  because  the.v  are  of  a  nature  j 
which  cannot  be  certainly  measured,  would  \ 
be  to  enable  parties  to  profit  by  and  specu- 
late upon  their  own  wrongs,  encourage  vio- 
lence, and  invite  depredation."  Gilbert  v. 
Kennedy,  22  Mich.  117,  1.30. 

But  where  the  damages  are  such  as  do  not 
follow  the  injury,  as  a  necessar.v  conse- 
quence, they  should  be  specially  alleged  in 
the  declaration.  This  is  a  rule  of  fairness, 
that  the  defendant  may  know  what  case  it 
is  intended  to  make  against  him,  and  be  pre- 
pared to  meet  it,  if  it  is  false  or  falsely  color- 
ed. In  the  cases  above  cited  from  our  own 
Reports,  the  allegations  of  special  damage 
were  very  full  and  specific.  But  in  this 
case  there  is  onl.v  a  general  allegation  that 
the  plaintiff  was  prevented  fx'om  doing  and 
performing  his  necessary  business,  and  look- 
ing after  and  attending  his  necessary  affairs 
and  avocations.  This  liability  may  well  be 
said  to  flow  as  a  necessary  consequence  from 
any  severe  injury;  and  it  was  therefore  held 
in  Tomlinson  v.  Town  of  Derby,  43  Conn. 
502,  that  such  an  averment  could  only  be 
construed  as  characterizing  tlie  injury  and 
indicating  its  extent  in  a  general  way,  and 
that  it  did  not  lay  the  foundation  for  proof 
of  special  damages  in  a  particular  employ- 
ment    Evidence  that  plaintiff"  was  engaged 


76 


GENERAL  AKD  t^PEClAL  DAMAGES. 


in  a  particular  business,  at  which  he  was 
ejiruiii,n-  -$10U  a  month,  was  therefore  exclud- 
ed in  that  case,  though  the  declaration  was 
similar  to  the  one  here.  Taylor  v.  Town  of 
Monroe,  4,3  Conn.  36,  is  to  the  same  effect. 
Wade  V.  Leroy,  20  How.  34,  must  be  re- 
garded as  opposed  to  these. 

In  Baldwin  v.  Kailroad  Corp.,  4  (4ray.  333, 
similar  evidence  was  held  inadniissible,  un- 
der the  general  allegation  of  injury.  The 
action  was  for  a  physical  injury,  and  the 
plaintiff  had  been  permitted  to  show  that 
she  was  l)y  occupation  a  school  teacher,  and 
possessed  the  necessary  education  and  learn- 
ing. The  court  said  the  evidence  "could  have 
had  no  relevancy  or  application  to  the  aues- 
tions  at  issue  between  the  parties  except  as 
forming  the  basis  on  which  special  damag^ 
were  to  be  assessed  for  the  injury  of  which 
she  complained.  It  did  not  tend  to  show 
an  injury  falling  within  the  class  of  general 
damages.  That  class  includes  only  such 
damages  as  any  other  person  as  well  as  the 
plaintiff,  under  the  same  circumstances, 
might  have  sustained  from  the  facts  set 
out  in  the  declaration.  Without  determining 
the  more  difficult  question  whether  the  evi- 
dence would  be  admissible  under  any  form 
of  declaration,  it  is  clear  that  this  part  of 
the  plaintiff's  claim  could  be  founded  only 
upon  a  peculiar  loss  sustained  by  her  by 
reason  of  the  interruption  to  her  occupation, 
resulting  from  the  tortious  act  of  the  de- 
fendant. They  were  therefore,  in  their  na- 
ture, damages  not  necessarily  flowing  from 
the  acts  set  out  in  the  declaration,  and  of 
which  the  defendants  could  not  be  supposed 
to  have  notice  unless  they  were  properly 
averred."  Evidence  of  this  nature  was  re- 
ceived in  Railroad  Co.  v.  Coyle,  5^  Pa.  St. 
31>0,  but  the  report  does  not  give  the  plead- 
ings. See.  also,  Express  Co.  v.  Nichols,  33 
N.  J.  Law,  4.34. 

The  general  spirit  of  our  decisions  would 
perhaps  lead  to  a  more  liberal  rule  than 
that  applied  in  Connecticut,  as  above  shown, 
but  would  not,  I  think,  support  the 
ruling  complained  of  here.  What  was  the 
special  injury  complained  of  in  the  declara- 
tion? Only  that  the  plaintiff,  by  reason 
of  the  battery,  was  greatly  hindered  and 
prevented  from  doing  and  performing  his 
work  and  business,  and  looking  after  and  at- 
tending to  his  necessary  affairs  and  avocations. 
Did  this  fairly  apprise  the  defendant  that 
the  plaintiff  woidd  seek  to  show,  not  merely 
that  he  was  disabled  from  pursuing  a  par- 
ticular employment  not  mentioned,  but  also 
that,  by  reason  of  the    inability    to    obtain 


laborers,  his  property  went  to  ruin?  If  there 
is  a  natural  and  inseparable  connection  be- 
tween the  alleged  injury  and  the  damage, 
then  the  defendant  should  have  been  pre- 
pared to  meet  such  a  showing;  otherwise,  be 
was  entitled  to  more  specific  allegations.  But 
there  is  no  such  natural  and  inseparable  con- 
nection. The  circumstances  must  be  alto- 
gether exceptional  which  would  cause  a  farm- 
er to  lose  his  crops  because  he  could  not 
personally  gather  them.  Indeed,  according 
to  the  plaintiff's  shoAving,  the  circumstances 
were  exceptional  here;  for  the  injury  to  the 
hay  is  attributed  to  the  difficulty  of  obtain- 
ing help  to  save  it.  But  the  defendant,  had 
he  been  apprised  of  the  purpose  to  claim  for 
such  a  damage,  might  perhaps  have  shown 
that  the  ditficulty  was  wholly  imaginary,  or 
that  the  plaintiff"  willfully  suffered  his  hay  to 
be  injured,  when  he  might  have  avoided  it. 
It  was  his  right  to  make  such  a  showing,  if 
the  facts  would  warrant  it.  But  he  could 
not  be  awai'e  of  the  necessity  until  he  was 
notified  that  damage  to  the  hay  by  reason 
of  the  battery  was  claimed. 

In  another  particular  I  think  the  circuit 
judge  erred  in  his  rulings  on  evidence.  The 
defendant  not  only  offered  to  show  abusive 
and  provoking  conduct  by  the  plaintiff  on 
the  previous  Sunday,  but  also  that  the  plain- 
tiff threatened  him  on  that  occasion.  Had 
^any  facts  been  in  evidence  which  tended  to 
show  that  defendant,  when  he  committed  the 
assault,  had  reason  to  believe  he  was  de- 
fending himself  against  an  assault  by  the 
plaintiff,  the  proposed  evidence  of  threats 
should  have  been  received.  But  there  were 
no  such  facts,  and  the  judge  properly  over- 
ruled the  offer.  But,  having  done  this,  he 
permitted  the  plaintiff"  to  prove  the  negative, 
—that  he  made  no  such  threats.  This  evi- 
dence was  foreign  to  the  issue  being  tried, 
and,  under  ordinary  circumstances,  coidd 
have  had  no  influence,  but,  coming  immedi- 
ately after  the  attempt  by  the  defendant  to 
show  that  he  Avas  threatened,  was  very  well 
calculated  to  prejudice  the  jury  against  him. 
The  evidence,  if  believed,  must  have  con- 
vinced them  that  not  only  had  the  defendant 
committed  a  serious  assault,  but  that  he  had 
done  so  under  a  wholly  groundless  pretense 
of  fear,  and  had  off"ered  to  give  false  evi- 
dence of  threats  in  order  to  deceive  and  mis- 
lead the  jury.  It  seems  to  me  impossible 
that  the  negative  evidence  could  have  been 
harmless  under  such  circumstances.  The 
judgment,  I  think,  should  be  reversed,  and 
a  new  trial  ordered.  The  other  justices  con- 
curred. 


GENERAL  AND  SPECIAL  DAMAGES. 


77 


SVENDSEN  V.  STATE  BANK  OF  DULUTH. 

(G5  N.  W.  1080,  G4  Minn.  40.) 
Sii|>n  inc  ('(imt  of  Minnesot.-i.      Jan.  'JO.  ISDi;. 

Appeal  from  district  court,  St.  Louis  coun- 
ty;   S.  H.  Moer,  Judge. 

Action  by  Becker  Svendseu  against  tlie 
State  Bank  of  Duluth.  Verdict  for  plaintiff 
for  nominal  damages.  From  an  order  deny- 
ing a  new  trial  he  appeals.     Reversed. 

John  Rustgard,  for  appellant.  Smith,  Mc- 
Mahon  &  Mitclioll,  for  respondent. 

CANTY.  J.  During  the  time  covered  by 
the  transactions  hereinafter  mentioned  plain- 
tiff was  carrying  on  a  mercantile  business  in 
Duluth.  and  the  defendant  was  carrying  on 
a  banking  business  in  that  city.  Plaintiff 
was  a  customer  of  the  defendant,  and  kept 
a  deposit  in  its  bank,  v,'hich  he  was  in  the 
habit  of  drawing  out  by  means  of  checks, 
and  which  was  held  by  the  bank  for  the 
purpose  of  paying  such  checks.  He  had 
drawn  on  the  bank  a  check  for  .$42.15  in  fa- 
vor of  one  tirin,  and  another  for  ?r)4.60  in  fa- 
vor of  another  firm.  These  checks  came 
through  the  clearing  house,  and  were  on  the 
20th  day  of  October,  1893.  presented  for  pay- 
ment to  the  bank,  and  payment  refused,  for 
want  of  funds,  though  the  plaintiff  then  had 
on  deposit  in  the  bank,  oubject  to  his  check, 
the  sum  of  $2.35.22.  The  checks  were  return- 
ed through  the  clearing  house  to  the  holders 
thereof.  The  reason  why  the  bank  refused 
to  honor  the  checks  was  that  it  had  by  mis- 
take charged  up  to  plaintiff's  account  a  note 
for  .*i;300,  made  by  him,  and  held  by  it,  which 
was  not  yet  due,  but  wh'ch  the  l)ank  by  mis- 
take supposed  was  due  This  action  was 
brought  to  recover  damiiges  for  the  refusal 
to  pay  the  checks.  Plaintiff  did  not  allege 
or  prove  any  special  damages,  but  claimed 
to  be  entitled  to  recover  substantial  general 
damages.  The  court  below  on  the  trial  ruled 
against  him  on  this  point,  and  ordered  a  ver- 
dict in  his  favor  for  nominal  damages,  to 
which  he  excepted,  and  from  an  order  deny- 
ing a  new  trial  he  appeals. 

It  is  held  by  the  authorities  that  in  such 
a  case  the  plaintiff's  recovery  is  not  limited 
to  nominal  damages,  but  he  is  entitled  to  re- 
cover general  compensatory  damages.  Ro- 
lin  V.  Steward,  14  C.  B.  595;  Schaffner  v. 
Ehrman  (111.  Sup.)  28  N.  E.  917;  Bank  v. 
Goos  (Neb.)  58  N.  W.  84;  Patterson  v.  Bank. 
130  Pa.  St.  419,  18  Atl.  (132;  3  Am.  &  Eng. 
Enc.  Law,  225;  1  Suth.  Dam.  (2d  Ed.)  §  77. 
The  case  of  Patterson  v.  Bank,  supra,  seems 
to  place  the  right  to  recover  more  than  nomi- 
nal damages  in  such  a  case  on  the  ground 


of  public  policy,   but  the  other  cases   place 
it  rather  on  the  ground  that  the  wrongful  act 
of  the  banker  in  refusing  to  honor  the  check 
imputes  insolvency,  dishonesty,  or  bad  faith 
to  the  drawer  of  the  check,  and  has  the  effect 
of  slandering  the  trader  in  his  business.    We 
are  of  the  opinion  that  the  recovery  of  more 
than  nominal  damages  can.  on  sound  princi- 
ple, be  sustained  on  the  latter  ground,  where 
the  drawer  of  the  check  is  a   mercliant   or 
trader.     To  refuse  to  hcuior  his  check  is  a 
most  effectual  way  of  slandering  him  in  his 
trade,  and  it  is  well  settled  that  to  impute 
insolvency  to  a  merchant  is  actionable  per 
so,  and  general  damages  may  be  recovered 
for  such   a   slander.     Townsn.    Sland.    &   L. 
(4th  Ed.)  §  191;    Odger,  Sland.  &  L.  (2d  Ed.) 
80.     Respondent's  position  that  an  action  of 
tort  cannot  be  n.aintained  in  such  a  case  as 
this,  and  that   [)lai-itiff's  only  remedy  is  an 
action   on   contract,   in  which   only   nominal 
damages  can  be  recovered,  is  not  sustained 
by  the  authorities.  The  case  of  Marzetti  v.  Wil- 
liams. 1  Barn.  &  Adol.  415,  cited  by  him,  was 
an  action  in  tort.     The  amount  of  the  verdict 
is  not  reported,  but  It  is  very  evident  that 
it  w\^s  only  for  a  nominal  amount,  and  tin- 
only  question  before  the  court  was  whether 
or  not  the  defendant  was  entitled  to  a  non- 
suit   because    the    action    should    have    been 
brought  on  contract,  not  in  toi't.     The  court 
held  against  the  defendant  on  that  point,  and 
what  is  said   beyond   this  is  merely  obiter, 
and  was  so  regarded  in  the  subsequent  case 
of  Rolin  V.  Steward.     In  Prehn  v.  Bank,  L. 
R.  5  Exch.  92,  the  only  question  was  v.hether 
plaintiffs  were  entitled  tc  recover  of  the  bank 
certain  sums   which   they  had   paid   to  save 
their  credit  by   procuring  money  elsev,-here 
to  pay  bills  drawn  by  them  on  the  bank,  and 
to   prevent  the   bills  from   going   to   protest 
after    the   bank    had    notified    them    that    it 
would   not   pay   these   bills,    although   it  had 
funds    in    its    hands    for    that    purpose.      It 
was  held   that   they  could   recover   the   full 
sum  so  paid  by  them  to  preserve  their  cred- 
it,   and   the  authority   of   Rolin   v.    Steward 
was    expressly     recognized.      The    case     of 
Brooke  v.  Bank,  ('.9  Hun,  202,  23  N.  Y.  Supp. 
802,    was   an  action    by   the   receiver   of   an 
Insolvent    whose    check    had    been    wrong- 
fully dishonored  by  the  bank.     The  plaintiff" 
was  forced  to  concede  that  he  could  not  main- 
tain an  action  of  tort,  or  recover  any  dam- 
ages but  such  special  damages  as  he  alleged 
.   and  could  prove  in  an  action  for  breach  of  a 
'   contract.    These  are  all  the  cases  cited  wliich 
have  any  bearing  on  the  case.     These  are  the 
only  questions   raised   worthy  of  considera- 
tion.    It  necessarily  follows  from  the  forego- 
ing conclusions  that  the  order  appealed  from 
must  be  reversed.     So  ordered. 


t6 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


NATIONAL  COPPER  CO.  v.  MINNESOTA 
MIN.  CO. 

(23  N.  W.  781,  57  Mich.  83.) 

Supreme  Court  of  Michigan.     June  3,  1885. 

Error  to  Ontonagon, 

T.  L.  Chadbourne,  for  appellant.  Chandler, 
Grant  «fe  Gray  and  G.  V.  N.  Lotbrop,  for  ap- 
pellee. 

COOLEY,  C.  J.  This  is  an  action  of  tres- 
pass. The  following  is  a  statement  of  the 
case,  as  made  for  the  plaintiff,  for  the  argu- 
ment in  this  court: 

"The  plaintiff  and  defendant  are  corpora- 
tions, which  for  25  years  and  more  have  been 
engaged  in  copper  mining  in  Ontonagon  coun- 
ty. Their  mines  adjoin  each  other.  Each 
owns  the  land  in  fee  on  which  its  mine  is  situ- 
ated. The  plaintiff,  in  cari-ying  on  its  mining 
operations,  left  a  wall  of  rock,  from  15  to  18 
feet  thick,  next  to  the  boundary  line  of  de- 
fendant's mine.  This  was  left  as  a  barrier 
and  protection  to  its  mine  against  water  or 
other  encroachments  from  the  Minnesota.  The 
Minnesota  left  no  such  barrier;  it  not  only 
worked  up  to  the  boundary  line,  but  broke 
through  into  defendant's  mine.  About  the 
ye.ar  ISGG  the  plaintiff,  at  about  40  feet  above 
its  fourth  level,  and  from  20  to  25  feet  from  the 
boundary  line,  drilled  a  hole,  of  the  ordinai-y 
size,  about  one  and  one-half  inches  in  diameter, 
and  when  the  blast  was  fired  it  blew  through 
into  the  opening  which  had  been  previously 
made  by  the  defendant  into  the  plaintiff's  tei'- 
ritory.  The  drill-hole  was  left  tlirough  from 
two  to  two  and  one-half  feet  of  solid  rock. 
Capt.  Chynoweth,  then  the  agent  of  plaintiff, 
examined  this  hole  and  the  surroundings,  and 
immediately  gave  orders  to  cease  work  there. 
This  was  done  as  a  further  protection  against 
the  defendant.  No  work  was  done  at  this 
point  after  that  until  the  winter  of  ISSS-l. 
The  plaintiff  had  no  knowledge  of  any  fui*- 
ther  trespass  at  this  point  until  Februaiy,  1884, 
under  the  circumstances  related  hereafter.  The 
pump  of  the  defendant  was  stopped  in  1870, 
and  that  of  the  plaintiff  in  1871  or  1872.  Plain- 
tiff's mine  filled  up  to  the  adit  level  in  about 
five  years.  Since  1870  the  defendant  has 
worked  its  mine  more  or  less  upon  tribute,  and 
so  did  the  plaintiff,  until  May,  1880,  when  it 
resumed  work.  In  order  to  avoid  liability  for 
the  trespass  committed  by  it  at  the  plaintiff's 
fourth  level,  (being  the  defendant's  fifth  level,) 
the  defendant  sought  to  show,  and  did  show, 
another  hole  at  the  first  level,  between  the  two 
mines.  A  continuation  of  the  inquiry  showed 
that  this  hole  also  was  about  20  feet  from  the 
boundary  line,  on  the  plaintiff's  side,  and  that 
defendant  had  here  trespassed  20  feet  upon 
plaintift"'s  land.  We  do  not  think  that  the  his- 
tory of  niiuing  upon  Lake  Superior  will  dis- 
close another  instance  of  such  reckless  disre- 
gard of  the  rights  of  an  adjoining  mine-owner. 
This  encroachment   and   trespass    by   the   de- 


fendant at  the  defendant's  fifth  level  occun*ed 
about  the  year  1859. 

"In  May,  1880,  the  plaintiff  resumed  mining 
operations  and  commenced  to  pump  the  water 
from  its  mine.  The  six-inch  pump,  formerly 
used  by  the  mine,  and  which  had  always  been 
adequate  to  keep  the  mine  unwatered,  proved 
wholly  inadeciuate,  and  it  was  compelled  to  get 
a  12-inch  pump,  and  even  this  was  not  sufficient 
in  the  spring;  and  in  1882  the  water  gained 
on  them  120  feet,  and  in  1883,  222  feet,  with 
the  pump  working  night  and  day.  Capt.  Par- 
nell,  the  agent  of  the  plaintiff's  mine,  was 
thoroughly  acquainted  with  it,  having  worked 
in  the  mine  years  before;  he  soon  became  con- 
vinced that  the  bulk  of  the  water  came  from 
the  defendant's  mine.  He  found  that  the  wa- 
ter came  from  the  fourth .  level.  He  cleaned 
out  the  level,  and,  on  reaching  the  point  where 
the  drill-hole  had  been  made  years  before,  he 
found  that  the  rock  had  been  all  blasted  away 
from  the  Minnesota  side,  and  that  the  water 
was  rushing  through  an  opening  from  20  to  25 
feet  high  and  12  feet  wide.  When  discovered 
there  was  a  volume  of  water  seven  feet  wide 
flowing  from  the  Minnesota  into  the  National. 
When  the  defendant  made  its  second  encroach- 
ment at  this  point  does  not  clearly  appear; 
according  to  the  defendant's  witness  Spargo  it 
was  in  1871  or  1872.  This  witness  was  an 
employe  of  the  defendant,  and  one  of  its  tribu- 
ters.  He  says  he  saw  the  hole  from  the  Min- 
nesota side,  and  it  was  then  six  to  eight  feet 
high,  and  from  four  to  five  feet  wide.  Wil- 
liam George,  a  witness  for  defendant,  last  saw 
the  hole  in  1870  or  1871.  '  It  was  then  about  a 
foot  in  diameter.  The  witness  was  then  work- 
ing for  the  defendant  as  tributer  and  captain. 
Thomas  Jdmes  was  in  charge  of  the  mine. 
He  admits  that  the  defendant's  tributers  were 
then  mining  there.  This  same  Capt.  James 
has  been  in  charge  of  the  defendant's  mine  as 
agent  ever  since. 

"It  was  not  denied  in  the  court  below,  and 
we  presume  will  not  be  in  this  com-t,  that  the 
defendant  connuitted  these  several  acts  of  tres- 
pass. But,  in  proof  of  the  fact,  we  refer  to 
the  admission  of  the  agent  Harris,  the  evidence 
that  the  track  of  a  tram-road,  soUars,  and  a 
system  of  timbering  were  found  constructed 
from  the  fifth,  level  of  defendant's  mine  into 
this  opening,  and  the  testimony  of  plaintift"s 
witnesses  already  referred  to.  Furthermore, 
it  is  beyond  dispute  that  the  defendant  know- 
ingly and  willfully  committed  these  acts  of 
trespass,  and  broke  down  the  barrier  which 
the  plaintiff  had  so  carefully  left  to  protect  its 
mine  for  all  future  time,  and  against  all  possi- 
ble dangers. 

"About  1870  the  defendant  concluded  to 
abandon  regular  mining,  stopped  its  pumps, 
and  commenced  what  is  known  among  miners 
as  robbing  the  mine.  It  placed  its  tributers 
at  work  at  the  bottom  of  the  mine,  took  out 
all  the  copper  ground  that  could  be  found,  took 
out  the  supports  of  the  roof  of  the  mine,  and 
allowed  it  to  settle  or  cave  in.  This  was  all 
done  under   the  direction  of   the  defendant's 


PRESENT  AND  PliOSrECTIVE   DAMACiES. 


79 


agent,  James.  The  defendant's  mine  is  situ- 
ated upon  a  hill  or  mountain  side.  The  result 
was  that  the  surface  of  the  ground  became  de- 
pressed, and  openings  were  made  in  it.  De- 
fendant's agent,  James,  testified  to  openings  of 
this  character  on  the  surface  of  the  Minnesota, 
amounting  in  all  to  over  500  feet  in  length; 
some  were  3  or  4  feet  wide.  Into  these  open- 
ings the  water  from  rains  and  melting  snow 
ran  into  the  defendant's  mine,  and  from  tlionce 
flowed  into  the  plaintiff's  mine,  through  the 
opening  at  its  fourth  level.  But  for  these  open- 
ings the  water  would  have  run  down  the  hill- 
side. As  one  of  defendant's  own  witnesses  ex- 
pressed it,  'There  has  been  a  general  falling 
away  of  the  bluff.'  There  were  no  such  open- 
ings on  the  surface  of  the  National.  In  fact, 
we  everj'where  find  the  plaintiff  couauctmg  its 
mining  operations  with  due  regard  to  the 
rights  of  adjoining  owners;  while  we  find 
the  defendant  conducting  its  operations  in 
the  most  reckless  disregard  of  such  rights." 

The  above  is  a  suflScient  statement  of  the 
facts  for  a  discussion  of  the  principal  question 
in  the  case,  viz:  Is  the  plaintiff's  right  of  ac- 
tion barred  by  the  statute  of  limitations? 

The  count  in  the  declaration  on  which  thp 
parties  went  to  trial  alleged  that  the  defend- 
ant, on  March  15,  1882,  and  on  divers  days 
and  times  between  that  day  and  the  com- 
mencement of  suit,  with  force  and  arms  broke 
down  the  partition  wall  between  the  mine  of 
the  plaintiff  and  the  mine  of  the  defendant, 
and  let  the  water  from  its  said  mine  into  the 
mine  of  the  plaintiff,  and  then  and  there  filled 
the  mine  of  the  plaintiff  with  water,  greatly 
damaging  its  timbering,  workings,  walls,  and 
machinery,  hindered  and  prevented  the  plain- 
tiff from  carrying  on  and  transacting  its  law- 
ful and  necessary  affairs  and  business,  caused 
the  plaintiff  great  damage  and  expense  in  re- 
moving water  from  its  mine,  etc. 

The  defendant  pleaded  the  general  issue, 
with  notice  that  the  statute  of  limitations 
would  be  relied  upon.  The  plaintiff  recovered 
a  large  judgment. 

1.  The  time  limited  for  the  commencement 
of  suit  for  trespass  upon  lands  in  this  state  is 
two  years  from  the  time  the  right  of  action 
accrues.  How.  St.  §  8714.  This  action  was 
commenced  in  May,  1884,  and  it  is  not  claimed 
that  damages  for  the  original  trespass  can  be 
recovered  in  it.  The  contention  of  the  plain- 
tiff may  be  succinctly  stated  as  follows:  (1) 
Had  the  plaintiff  instituted  suit  within  two 
years  from  the  original  trespass,  the  recovery 
would  have  been  limited  to  such  damages  as 
were  the  direct  and  immediate  result  of  the 
trespass.  The  subsequent  flowage  of  water 
through  the  opening  was  not  the  direct,  imme- 
diate, or  necessaiy  result  of  breaking  down  the 
barriers;  therefore  no  damages  could  have 
been  recovered  therefor  in  an  action  so  brought. 
(2)  Two  trespasses  may  be  the  result  of  one 
act.  In  other  words,  one  trespass  may  cause 
another,  and  he  who  commits  the  wrongful 
act  in  such  a  case  will  be  responsible  for  both 
trespasses.     (3)  In  this  case  no  action  accrued 


for  the  flow-age  of  water  into  the  plaintiff's 
mine  until  the  flowage  actually  took  place,  but 
when  the  flowage  occurred  as  a  result  of  de- 
fendant's wrongful  act  it  was  a  trespass,  and 
if  it  continued  from  day  to  day  there  was  a 
continuous  trespass  for  which  repeated  actions 
migut  be  maintained. 

Upon  these  positions  the  plaintiff  plants  its 
case,  and  unless  they  are  sound  in  law  the  re- 
covery cannot  be  supported.  All  right  of  re- 
covery for  the  original  trespass,  which  consist- 
ed in  breaking  through  into  the  plaintiff's  mine, 
was  long  since  barred,  and  it  is  not  claimed 
that  there  was,  from  the  time  of  the  first 
wrong,  a  continuous  trespass  which  can  give  a 
right  of  action  now.  The  merely  leaving  an 
opening  between  the  two  mines  is  not  the 
wrong  for  which  suit  is  brought,  but  it  is  the 
flowing  of  water  through  the  opening  which  is 
complained  of  as  a  new  trespass;  the  original 
wrongful  act  of  the  defendant  in  breaking 
through  being  the  cause,  and  the  injurious  con- 
sequence when  it  happened,  connecting  itself 
with  the  cause  to  complete  the  right  of  action. 

In  support  of  its  contention  that  the  case 
before  us  may  be  regarded  as  one  of  con- 
tinuous trespass  from  the  first,  several  au- 
thorities are  cited  for  the  plaintiff,  which 
may  be  briefly  noticed.  Among  them  is 
Holmes  v.  Wilson,  10  Adol.  &  E.  503.  It  ap- 
peared in  that  case  that  a  turnpike  company 
had  built  buttresses  on  the  plaintiff's  land  for 
the  support  of  its  road.  The  act  was  a  tres- 
pass, and  the  plaintiff  recovered  damages 
therefor;  but  this,  it  was  held,  did  not  pre- 
clude its  maintaining  a  subsequent  action  for 
the  continuance  of  the  buttresses  where  they 
had  been  wrongfully  placed.  The  ground  of 
the  decision  was  that  in  the  first  suit  dam- 
ages could  be  recovered  only  for  the  con- 
tinuance of  the  trespass  to  the  time  of  its 
institution.  There  could  be  no  legal  pre- 
sumption that  the  turnpike  company  would 
persist  in  its  wrongful  conduct,  and  conse- 
quently, prospective  damages,  which  would 
only  be  recoverable  on  the  ground  of  such 
persistent  wrong-doing,  would  not  have  been 
within  the  compass  of  the  first  recovery. 
The  cases  of  Bowyer  v.  Cook,  4  C.  B.  236; 
Thompson  v.  Gibson.  7  Mees.  &  W.  45G; 
Russell  V.  Brown,  63  Me.  203;  and  Powers 
V.  Council  Bluffs,  45  Iowa,  652,  are  all  de- 
cided upon  the  same  principle.  Cumberland, 
etc.,  Co.  V,  Hitchings,  65  Me.  140,  was  one  of 
the  wrongful  filling  up  of  a  canal  by  a  tres- 
passer. It  was  held  that  the  trespasser  was 
under  legal  obligation  to  remove  what  he 
had  unlawfully  placed  on  the  plaintiff's  prem- 
ises, and  that,  so  long  as  he  suffered  the 
obstruction  to  remain,  he  was  guilty  of  a 
continuous  trespass  from  day  to  day. 

In  Adams  v.  Railroad  Co..  18  Minn.  260 
(Gil.  236,)  and  Troy  v.  Railroad  Co.,  23  N. 
H,  83,  railroad  companies  which,  by  tres- 
pass, had  entered  upon  the  lands  of  indi- 
viduals and  constructed  and  began  the  oper- 
ation of  railroads,  were  held  liable  as  tres- 
passers from  day  to  day  so  long  as  the  oper- 


80 


PRE^SENT  AND  PKO.SL'ECTIVE  DAMAGES. 


ation  of  the  road  was  ooiitiuued.  The  priu- 
ciple  of  decision  in  all  these  cases  is  clear 
and  not  open  to  question.  In  each  of  them 
11) ore  was  an  original  wrong,  but  there  was 
also  a  persistency  in  the  wrong  from  day  to 
day;  the  plaintiff's  possession  Avas  continu- 
ally invaded,  and  his  right  to  the  exclusive 
occupation  and  enjoyment  of  his  freehold 
continually  encroached  iipon  and  limited. 
Each  day,  therefore,  the  plaintiff  suffered  a 
new  wrong,  but  no  single  suit  could  be  made 
to  embrace  prospective  damages,  for  the  rea- 
son that  future  persistency  in  the  wrong 
could  not  legally  be  assumed. 

To  make  these  cases  applicable,  it  is  nec- 
essary that  it  should  appear  that  the  action 
of  tlie  defendant  has  been  continuously 
wrongful  from  the  first.  Whether  it  can  be 
so  regarded  will  be  considered  further  on. 
The  plaintiff,  howevex',  does  not,  as  we  have 
seen,  rely  exclusively  upon  this  view.  Its 
case  is  likened  by  counsel  to  that  of  a  farmer, 
whose  fences  are  thrown  down  by  a  tres- 
passer; the  cattle  of  the  trespasser  on  a 
subsequent  day  entering  through  the  open- 
ing. In  such  a  case  it  is  said  there  are  two 
trespasses:  the  one  consisting  in  throwing 
down  the  fences,  and  the  other  in  the  entry 
of  the  cattle;  and  the  right  of  action  for  the 
latter  would  accrue  at  the  time  the  entry  was 
actually  made.  The  plaintiff  also  cites  and 
relies  upon  a  number  of  cases  in  which  the 
act  of  the  party  which  furnishes  the  ground 
of  complaint  antedates  the  injurious  conse- 
quence, as  the  original  trespass  in  this  case 
antedated  the  flowing  from  which  the  plain- 
tiff has  suffered  damage. 

One  of  these  cases  is  Bank  of  Hartford  Co. 
V.  Waterman,  2G  Conn.  324.  In  that  case 
action  was  brought  against  a  sheriff  for  a 
false  return  to  a  writ  of  attachment.  The 
falsity  consisted  in  a  misdescription  of  the 
land  attached.  When  suit  was  brought,  the 
period  of  limitation,  if  it  was  to  be  com- 
puted from  the  time  the  return  was  made, 
had  already  run;  but  under  the  statute  the 
plaintiff  was  entitled  to  bring  suit  only  aft- 
er he  had  taken  out' execution  and  had  a  re- 
turn made  upon  it,  which  would  show  a 
necessity  for  a  resort  to  the  attached  lands. 
It  was  only  after  such  a  return  of  execution 
that  the  plaintiff  would  suft"er  even  nominal 
damage  from  the  official  misfeasance;  and 
it  was  therefore  a  necessary  consequence 
that  the  time  of  limitation  must  be  comput- 
ed from  that  time,  and  not  from  the  time  of 
the  false  return. 

Another  case  is  that  of  McGuire  v.  Grant, 
25  N.  J.  Law,  3.")6,  which  is  to  be  referred  to 
the  same  principle.  The  defendant  removed 
the  lateral  support  to  the  plaintiff's  land  by 
an  excavation,  made  within  his  own  bound- 
aries. Injury  subsequently  resulted  to  the 
idaintiff  in  consequence.  The  statute  of  lim- 
itations was  held  to  run  from  the  time  the 
damage  occurred;  the  excavation  not  being 
of  itself  a  tort  until  damage  resulted.  The 
case  of  Bonomi  v.  Backhouse,  El.  Bl.  ..t  El. 


G22,  was  like  the  last  in  principle,  and  was 
decided  in  the  same  way. 

The  plaintiff  also,  in  this  connection,  likens 
its  case  to  that  of  one  who,  in  consequence 
of  a  ditch  dug  upon  his  neighbor's  land,  has 
water  collected  and  thi-own  upon  his  prem- 
ises to  his  injury.  It  is  not  the  act  of  dig- 
ging the  ditch  that  sets  the  time  of  limita- 
tion to  running  in  such  a  case,  but  it  is  the 
happening  of  the  injurious  consequence. 
The  case  supposed,  however,  is  not  a  case  of 
trespass.  The  act  of  digging  the  ditch  was 
not  in  itself  a  wrongful  act.  The  owner  of 
land  is  at  liberty  to  dig  as  many  ditches  as 
he  pleases  on  his  own  land,  and  he  becomes 
a  wrong-doer  only  when,  by  means  of  them, 
he  causes  injury  to  another.  If  he  floods  his 
neighbor's  land  the  case  is  one  of  nuisance, 
and  every  successive  instance  of  flooding  is 
a  new  injui-y.  But  here,  as  in  the  case  of  a 
continuous  trespass,  prospective  damages 
cannot  be  taken  into  account,  because  it 
must  be  presumed  that  wrongful  conduct 
will  be  abandoned  rather  than  persisted  in, 
and  that  the  party  will  either  fill  up  his 
ditches  or  in  some  proper  way  guard  against 
the  recurrence  of  injuiy.  Battishill  v.  Reed, 
18  C.  B.  G96.  Cases  of  flooding  lands  by 
dams  or  other  obstructions  to  running  water 
are  cases  of  this  description.  Baldwin  v. 
Calkins,  10  Wend.  1G9;  Mersereau  v.  Pear- 
sail,  19  N.  Y.  lOS;  Plate  v.  Railroad  Co.,  37 
N.  Y.  472.  So  are  cases  of  diverting  water,  to 
the  flow  of  which  upon  his  premises  the  plain- 
tiff is  entitled.  Langford  v.  Owsley,  2  Bibb, 
215.  So  are  cases  of  the  wrongful  occupation 
of  a  public  street,  whereby  the  access  of 
the  plaintiff'  to  his  premises  is  obstructed. 
Carl  V.  Railroad  Co.,  46  Wis.  G25;  S.  C.  1  N. 
W.  295.  Other  cases  cited  for  the  plaintiff', 
and  resting  on  the  same  principle,  are  Thay- 
er V.  Brooks,  17  Ohio,  489;  Blunt  v.  McCor- 
mick,  3  Denio,  283;  Winchester  v.  Stevens 
Point,  58  Wis.  350.  17  N.  W.  3,  547;  Union 
Trust  Co.  V.  Cuppy,  2G  Kan.  754;  Spilman  v. 
Navigation  Co.,  74  N.  C.  G75;  Loweth  v. 
Smith,  12  Mees.  &  W.  582. 

The  case  of  Whitehouse  v.  Fellowes,  10  C. 
B.  (N.  S.)  7G5,  was  one  of  nuisance.  A  turn- 
pike company  made  a  covered  drain  with 
gratings  at  intervals  and  catchpits.  In  con- 
sequence of  the  insufliciency  of  the  catch- 
pits,  or  of  their  not  being  kept  in  proper  con- 
dition, the  plaintiff's  colliery  was  flooded 
eveiy  time  there  was  a  heavy  shower.  In 
an  action  for  this  flooding  it  was  held  that 
every  damage  was  a  new  injury  and  gave  a 
new  right  of  action.  The  ruling  sustained 
the  position  taken  for  the  plaintiff  in  the 
case,  which  was  thus  succinctly  stated  by 
counsel  arguendo:  "The  distinction  which 
pervades  the  cases  is  this:  Where  the  plain- 
tiff complains  of  a  trespass,  the  statute  nins 
from  the  time  when  the  act  of  trespass  was 
committed,  except  in  the  case  of  a  continuing 
trespass.  But  where  the  cause  of  action  is 
not  in  itself  a  trespass,  as  an  act  done  upon 
a  n.au's  own  land,  and  the  cause  of  action  is 


PEESENT  AND  PROSPECTIVE  DAMAGES. 


81 


the  consequential  injury  to  the  phiintiff, 
there  the  period  of  Umitation  runs  from  the 
time  the  damage  is  sustained." 

The  case  before  us  was  one  of  admitted 
trespass,  from  which  immediate  damage  re- 
sulted. Had  suit  been  brought  at  that  time, 
all  the  natural  and  probable  damage  to  re- 
sult from  the  wrongful  act  would  have  been 
taken  into  account,  and  the  plaintih'  would 
have  recovered  for  it.  But  there  was  no 
continuous  trespass  from  that  time  on.  The 
defendant  had  built  no  structure  on  the 
plaintiff's  premises,  was  occupying  no  part 
of  them  with  anything  it  had  placed  there, 
and  was  in  no  way  interrupting  the  plain- 
tiff's occupation  or  enjoyment.  All  it  had 
left  there  was  a  hole  in  the  wall.  But  there 
is  no  analogy  between  leaving  a  hole  in  a 
wall  on  another's  premises  and  leaving 
houses  or  other  obstructions  there  to  In- 
cumber or  hinder  his  occupation;  the  phys- 
ical hindrances  are  a  continuance  of  the 
original  wrongful  force,  but  the  hole  is  only 
the  consequence  of  a  wrongful  force  which 
ceased  to  operate  the  moment  it  was  made. 

If,  therefore,  the  plaintiff  had  brought  suit 
more  than  two  years  after  the  original  tres- 
pass, and  before  the  flooding  of  its  mine  by 
wateir  flowing  through  the  opening  had  be- 
gun, and  if  the  statute  of  limitations  had 
been  pleaded,  there  could  have  been  no  re- 
covery. The  action  for  the  original  wrong 
would  then  have  been  barred,  and  there  had 
been  no  repetition  of  the  injury  in  the  mean 
time  to  give  a  new  cause  of  action.  The 
mere  continuance  of  the  opening  in  the  wall 
could  not  be  a  continuous  damage.  Lloyd 
V.  Wigney,  G  Biug.  4S9. 

The  right  of  action,  if  any,  for  which  the 
plaintiff  can  complain,  must  therefore  arise 
from  the  flowing  itself  as  a  wrongful  act; 
there  being  no  longer  any  action  for  the  orig- 
inal breaking,  and  no  continuous  acts  of 
wrong  from  that  time  until  the  flowing  be- 
gan. The  flowage  caused  a  damage  to  the 
plaintiff;  but  damage  alone  does  not  give  a 
right  of  action;  there  must  be  a  concurrence 
of  wrong  and  damage.  The  wrong,  then, 
must  be  found  in  leaving  the  opening  unclos- 
ed and  permitting  the  water  to  flow  through. 
It  must  therefore  rest  upon  an  obligation  on 
the  part  of  the  defendant  either  to  close  the 
opening,  because  persons  for  whose  acts  it 
was  responsible  had  made  it,  or  to  restrain 
water  which  had  collected  on  its  own  prem- 
ises from  flowing  upon  the  premises  of  the 
plaintiff  to  its  injury.  The  latter  seems  to  be 
the  ground  upon  which  the  plaintiff  chiefly  re- 
lies for  a  recovery. 

In  the  argument  made  for  the  plaintiff  in 
this  court  stress  is  laid  upon  the  fact  that  the 
damage  which  has  actually  resulted  from  the 
flooding  could  not  have  been  anticipated  at 
the  time  of  the  original  trespass,  and  there- 
fore could  not  then  have  been  recovered  for. 
This  consideration,  it  is  urged,  ought  to  be 
decisive.  But.  while  we  agree  that  it  is  to  bo 
considered  in  the  case  for  what  it  is  worth,  it 
LAW  DAM.2d  Ed.— G 


is  by  no  means  necessarily  conclusive.  The 
plaintiff  must  fix  some  distinct  wrong  upon 
tlie  defendant  within  the  period  of  statutory 
limitation,  or  the  action  must  fail;  and  there 
is  no  such  wrong  in  this  case  unless  the  fail- 
ure to  prevent  the  flowing  constitutes  one. 
The  original  act  of  Avrong  is  no  more  in  ques- 
tion now,  after  having  bccu  barred  by  the 
statute,  than  it  would  have  been  if  damages 
had  been  recovered  or  settled  for  amicably; 
nor  do  we  see  that  it  can  be  important  in  a 
case  like  the  present,  where  the  wrong  must 
be  found  in.  the  injurious  flowing,  wuether 
there  was  or  was  not  a  wrong  originally.  If 
there  was,  it  stands  altogether  apart  from  the- 
wrong  now  sued  for,  Avith  an  interval  be- 
tween them,  when  no  legal  wrong  could  have- 
been  complained  of.  The  mere  fact  that  an 
opening  was  made  by  the  defendant  between 
the  two  mines,  would  not  of  itself  have  been 
a  trespass  unless  the  defendant  invaded  the 
plaintiff's  premises  in  making  it.  Each  party 
had  a  right  to  mine  on  its  own  side  to  the 
boundaiy,  (Wilson  v.  Waddell,  L.  R.  2  App.  .•> 
Cas.  95;)  and  if  the  plaintiff  had  first  done  so, 
the  defendant  might  have  done  the  same  at 
the  same  point,  and  in  that  way  have  made- 
an  opening  rightfully.  The  difference  be- 
tween the  case  supposed  and  this,  is  that  here 
the  defendant  was  foimd  to  have  gone  beyond 
the  boundary  and  committed  a  trespass.  But 
suppose  the  defendant  had  then  made  com- 
pensation for  the  trespass,  so  far  as  it  was 
then  damaging;  how  would  the  case  have 
differed  from  the  present?  The  opening  ^vould 
remain,  made  by  the  defendant,  through 
which,  if  the  water  was  allowed  to  collect  in 
his  mine,  it  must  eventually  pass;  and  if  he 
was  under  obligation  to  keep  it  within  the 
bounds  of  his  own  premises,  he  would  be  lia- 
ble for  allowing  it  to  pass;  otherwise  not. 
The  fact  that  compensation  was  not  actually 
made  for  the  breaking  away  of  the  plaintiff's 
barrier  is  immaterial  when  the  statute  has 
run,  as  has  been  already  explained. 

The  case  of  Clegg  v.  Dearden,  12  Q.  B.  57G, 
is  not  unhke  in  its  facts  the  case  before  us. 
In  that  case,  also,  there  had  been  a  wrongful 
breaking  through  from  one  mine  to  another, 
and  an  injurious  flowage  of  v\-ater  through 
the  opening.  The  facts  were  found  by  special 
verdict,  and  Lord  Denmau,  in  pronouncing 
judgment,  said:  "The  gist  of  the  action,  as 
stated  in  the  declaration,  is  the  keeping  open 
and  unfilled  up  of  an  aperture  and  excava- 
tion made  by  the  defendant  into  the  plain- 
tiffs' mine.  By  the  custom  the  defendant  was 
entitled  to  excavate  up  to  the  boundary  of 
his  mine  without  leaving  any  barrier;  and 
the  cause  of  action,  therefore,  is  the  not  fill- 
ing up  of  the  excavation  made  by  him  on  the 
plaintiffs'  side  of  the  boundary  and  within 
their  mine.  It  is  not,  as  in  the  case  of  Holm3S 
V.  Wilson,  10  Adol.  &  E.  503,  a  continuing  of 
something  wrongfully  placed  by  the  defend- 
ant upon  the  premises  of  the  plaintiif.  Nor 
is  it  a  continuing  of  something  placed  upon 
the  land  of  a  third  person  to  the  nuisance  of 


82 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


the  plaintiff,  as  in  tlie  case  of  Thompson  v. 
Gibson,  7  Mees.  &  W.  45G.  There  is  a  legal 
obligation  to  discontinue  a  trespass  or  remove 
a  nuisance;  but  no  such  obligation  upon  a 
trespasser  to  replace  what  he  has  pulled 
down  or  destroyed  upon  the  land  of  another, 
though  he  is  liable  in  an  action  of  trespass  to 
compensate  in  damages  for  the  loss  sustained. 
The  defendant  having  made  an  excavation 
and  aperture  in  the  plaintiffs'  land  was  liable 
to  an  action  of  trespass;  but  no  cause  of  ac- 
tion arises  from  his  omitting  to  re-enter  the 
plaintiffs'  land  and  fill  up  the  excavation. 
Such  an  omission  is  neither  the  continuation 
of  a  trespass  nor  of  a  nuisance;  nor  is  it  the 
breach  of  any  legal  duty.  It  was,  however, 
contended  on  the  part  of  the  plaintiffs,  that, 
admitting  this  to  be  so,  there  nevertheless 
was  a  legal  obligation  or  duty  upon  the  de- 
fendant to  take  means  to  prevent  the  water 
from  flowing  from  his  mine  into  that  of  the 
plaintiffs  through  the  aperture  he  had  made;" 
but  "the  plaintiffs  have  not  alleged  any  such 
'  duty  or  obligation  in  their  declaration,  nor  is 
their  action  founded  upon  the  breach  of  any 
such  duty,  if  it  exists,  but  upon  the  omission 
to  fill  up  the  aperture  made  by  them  in  the 
plaintiffs'  mine.  It  appears  to  us  that  the 
defendant,  upon  the  facts  found  by  the  jury, 
is  entitled  to  have  the  verdict  entered  for 
him  upon  the  plea  of  not  guilty." 

If  this  case  was  rightly  decided,  it  should 
rule  the  one  before  us.  It  has  been  followed 
by  the  supreme  court  of  Ohio  in  Williams  v. 
Coal  Co.,  37  Ohio  St.  583,  in  a  case  which  also 
closely  resembles  this  upon  its  facts,  and  is 
not  distinguishable  in  principle.  It  seems  to 
us  that  these  cases  are  sound  in  law  as  well 
as  conclusive.  The  only  wrongful  act  with 
which  the  defendant  is  chargeable,  was  com- 
mitted so  long  before  the  bringing  of  suit  that 
action  for  it  was  barred.  Had  suit  been 
brought  in  due  time,  recovery  might  have 
been  had  for  all  damages  which  could  then 
have  been  anticipated  as  the  natural  and 
probable  result  of  the  wrongful  act.  If  the 
particular  damages  which  have  been  suffered 
could  not  then  have  been  anticipated,  it  Is  be- 
cause it  could  not  then  be  known  that  the  de- 
fendant would  cease  miniug  operations  and 
the  plaintiff  would  not.  There  could  be  no 
flowing  from  one  mine  into  the  other  while 
both  were  worked;  and  had  the  plaintiff 
.ceased  operations  and  the  defendant  contin- 


ued to  work,  the  defendant  would  hare  suf- 
fered the  damage  instead  of  the  plaintiff. 
But  neither  party  was  under  obligation  to 
keep  its  mine  pumped  out  for  the  benefit  of 
its  neighbor.  Either  was  at  liberty  to  discon- 
tinue its  operations  and  abandon  its  mine 
whenever  its  interest  should  seem  to  require 
it.  And  had  the  plaintiff'  brought  an  action 
within  two  years  from  the  time  of  trespass, 
its  recovery  would  necessarily  have  been  had 
with  this  undoubted  right  of  abandonment  in 
view.  But  a  jury  could  not  have  awarded 
damages  for  any  exercise  of  a  right,  and 
they  could  not,  therefore,  have  given  dam- 
ages for  a  possible  injury  to  flow  from  such 
an  abandonment.  This  is  on  the  plain  prin- 
ciple that  the  mere  exercise  of  a  right  cannot 
be  a  legal  wrong  to  another,  and  if  damage 
shall  happen,  it  is  damnum  absque  injuria. 

This  view  of  the  case  is  conclusive;  but 
there  is  another  that  is  equally  so.  The 
wrong  to  the  plaintiff'  consisted  in  breaking 
down  the  wall  which  had  been  left  by  it  in  its 
operations.  If  any  damage  might  possibly 
result  from  this  which  was  not  then  so  far 
probable  that  a  jurj^  could  have  taken  it  into 
account  in  awarding  damages,  the  plaintiff 
was  not  without  redress.  It  would  have  been 
entitled  in  a  suit  then  brought  to  recover  the 
cost  of  restoring  the  barrier  which  had  been 
taken  away;  and  if  it  had  done  so,  and  made 
the  restoration,  the  damage  now  complained 
of  could  not  have  happened.  It  thus  appears 
that  comj)lete  redress  could  have  been  had  in 
a  suit  brought  at  that  time;  and,  that  being 
the  case,  the  plaintiff  is  not  entitled  to  recov- 
er now  for  an  injury  for  which  an  award  of 
means  of  prevention  was  within  the  right  of 
action  which  was  suft'ered  to  become  barred. 
The  right  which  then  existed,  being  a  right  to 
recover  for  all  the  injury  which  had  then  been 
suff'ered,  including  the  loss  of  the  dividing 
barrier,  it  would  not  have  been  competent  for 
the  i)laintilt',  had  suit  then  been  brought,  to 
leave  the  loss  of  the  barrier  out  of  account, 
awaiting  possible  special  damages  to  flow 
therefrom  as  a  ground  for  a  new  suit.  The 
wrong  which  had  then  been  committed  was 
indivisible;  and  the  bar  of  the  statute  must 
be  as  broad  as  the  remedy  was  which  it  ex- 
tinguishes. 

The  judgment  must  be  set  aside  and  a  new 
trial  ordered. 

The  other  justices  concurred. 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


83 


DARLEY  :MA1X  COLLIERY  CO.  v.  MITCH- 
ELL. 

(11  Aw-  Cas.  127.) 

Hou^o  of   Lords,   Feb.  S,  1886. 

Appeal  from  a  decision  of  the  court  of  ap- 
peal.     14  Q.  B.  Div.  rJ5. 

The  respondeut  having  broiijz,ht  an  action 
against  the  appellants  for  damages  for  in- 
juries done  to  his  cottage  by  subsidence  in 
the  ground  on  which  they  stood,  caused  by  the 
improper  worldng  of  the  defendants'  colliery, 
among  other  defenses  they  set  up  the  statute 
of  linntations.  At  the  trial,  before  Hawkins, 
J.,  at  the  Leeds  summer  assizes,  1883,  the  fol- 
lowing facts  were  proved  or  admitted:  The 
plaintiff  was  the  freeholder  of  six  perches  of 
land  and  three  cottages  thereon,  in  the  parish 
of  Darlield,  Yorkshire.  The  defendants  were 
lessees  of  a  seam  of  coal  under  the  plain- 
tiff's land,  and  worked  the  coal  up  to  lS(i8. 
In  consequence  of  that  working,  a  subsidence 
of  the  land  took  place  in  1868,  causing  injury 
to  the  plaintiff's  cottages,  in  respect  of  which 
the  defendants  were  required  to  and  did  then 
execute  repairs.  The  defendants  never  work- 
ed the  coal  after  IStJS.  but  iu  1882  a  further 
subsidence  of  the  laud  took  place,  causing 
further  injury  to  the  cottages.  For  this  in- 
jury this  action  was  brought,  in  December, 
1SS2. 

The  special  jury  having  been  discliarged  by 
consent,  Hawkins,  J.,  OQ  further  consider- 
ation, entered  judgment  for  the  defendants 
upon  the  defense  of  the  statute  of  limitations, 
the  plaintiff's  counsel  admitting  that  he  cotdd 
not  distinguish  the  case  from  Lamb  v.  Walker, 
3  Q.  B.  Div.  389.  The  court  of  appeal  (Brett, 
M.  R.,  Bowen  and  Fry,  L.  JJ.)  reversed  this 
decision,  and  entered  jtidgment  for  the  plain- 
tiff for  damages  to  be  assessed  by  an  arbi- 
trator. 14  Q.  B.  Div.  125.  From  this  decision, 
the  defendants  appealed. 

During  the  argument  of  the  respondent's 
counsel  before  the  house,  a  discussion  took 
place  as  to  the  cause  of  the  subsidence  in 
18S2,  and  in  the  result  the  following  state- 
ment was  agreed  to.  in  writing,  between  the 
appellants'  and  respondent's  counsel:  Tliat 
after  the  partial  subsidence,  in  1868,  the 
strata  remained  practically  quiescent  until  the 
working  of  the  coal  in  the  next  adjoining  laud, 
in  1881,  which  working  caused  a  ''creep"  and 
a  further  subsidence;  that,  if  the  owner  of 
the  adjoining  land  (one  Cooper)  had  not  work- 
ed his  coal,  there  would  have  been  no  further 
subsidence;  but  the  appellants  admit  that  if 
the  coal  under  the  respondent's  land  had  not 
been  taken  out,  or  if  the  appeHants  had  left 
sufficient  support  under  the  respondent's  land, 
then  the  working  of  the  adjoining  owner 
would  have  done  no  harm. 

S,  B.  Somerville,  for  appellants  Baxter  &  Co. 
Ridsdale  &  Son.  for  respondent  Saunders, 
jSJicholson  &  Reeder.  . 


LORD  HALSBURY.  My  lords,  in  this  casa 
the  plaintiff,  the  owner  of  land  upon  the  sur- 
face, lias  sued  the  lessees  of  certain  seams  of 
coal  below  and  adjacent  to  the  plaintiff's  laud 
for  having  disturbed  the  plaintiff  iu  the  enjoy- 
ment of  his  property,  by  causing  it  to  subside. 
The  defendants,  before  and  up  to  the  year 
18()8,  have  worked— that  is  to  say,  excavated— 
the  seams  of  coal  of  which  they  were  lessees. 
Their  excavation  caused  a  subsidence  of  the 
ground,  for  which  they  acknowledged  their 
lial)ility.  and  made  satisfaction.  Tliere  were 
other  subsidences  after  this,  aud,  as  the  case 
originally  came  before  yotn-  lordships,  it  was 
matter  of  inference  only  whether  these  sub- 
sidences were  or  were  not  in  some  way  con- 
nected with,  if  iiot  forming  part  of,  the  original 
subsidence.  The  pArties  have  no\\.  by  an 
admission  at  your  lordships'  bar,  placert  tne 
matter  beyond  dotibt. 

It  has  been  agreed  that  the  owner  of  the  ad- 
joining land  worked  out  his  coal  subse(iuently 
to  18GS;  that,  if  he  had  not  done  so,  there 
would  have  been  no  further  subsidence:  and 
if  the  defendants'  coal  had  not  been  taken 
out,  or  if  suttieient  support  had  been  left,  the 
working  of  the  adjoining  owner  would  have 
done  no  harm.  ITnder  these  circumstances, 
the  question  is  whether  the  satisfaction  for 
the  past  subsidence  must  be  taken  to  have 
been  equivalent  to  a  satisfaction  for  all  suc- 
ceeding subsidences.  No  one  will  Uiink  of 
disputing  the  proposition  that  for  one  cause  of 
action  you  must  recover  all  damages  incident 
to  it  by  law  once  and  for  ever.  A  house  that 
has  received  a  shock  may  not  at  once  shew  all 
the  damage  done  to  it,  btit  it  is  damaged  none 
the  less  then  to  the  extent  that  it  is  damaged; 
and  the  fact  that  the  damage  only  manifests 
itself  later  on,  by  stages,  does  not  alter  the 
fact  that  the  damage  is  there.  And  so  of  the 
more  complex  mechanism  of  the  human  frame; 
the  damage  is  done  in  a  railway  accident; 
the  whole  machinery  is  injured,  though  it  may 
escape  the  eye  or  even  the  consciousness  of 
the  sufferer  at  the  time;  the  later  stages  of 
suffering  are  but  the  manifestations  of  the 
original  damage  done,  and  consequent  upon 
the  injury  originally  sustained. 

But  the  words  "cause  of  action"  are  some- 
what ambiguously  used  in  reasoning  upon  this 
subject.  What  the  plaintiff  has  a  right  to 
complain  of  in  a  court  of  law  in  this  case  is 
the  damage  to  his  land,  and  by  the  damage  I 
mean  the  damage  which  had  iu  fact  occurred; 
and,  if  this  is  all  that  a  plaintiff  can  complain 
of,  I  do  not  see  why  he  may  not  recover  toties 
quoties  fresh  damage  is  inflicted. 

Since  the  decision  of  this  hotise  in  Back- 
house V.  Bonomi,  9  H.  L.  Cas.  503,  it  is  clear 
that  no  action  would  lie  for  the  excavation. 
It  is  not  therefore  a  cause  of  action,  that 
case  established  that  it  is  the  damage,  and  not 
the  excavation,  which  is  the  cause  of  action. 
I  cannot  understand  why  every  new  subsi- 
dence, although  proceeding  from  the  same 
original  act  or  omission  of  the  defendants,  is 


84 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


not  a  new  caase  of  action,  for  wliieli  damages 
may  be  recovered.  I  cannot  concur  in  the 
view  that  there  is  a  breach  of  duty  in  the 
original  excavation. 

In  Rowbotham  v.  Wilson,  8  El.  &  Bl.  123, 
157,  Crosswell,  J.,  said  that  the  owner  of  the 
mines  might  have  removed  every  atom  of  the 
minerals  without  being  liable  to  an  action, 
if  the  soil  above  had  not  fallen;  and  what 
is  true  of  the  first  subsidence  seems  to  me 
to  be  necessarily  true  of  every  subsequent 
subsidence.  The  defendant  has  originally 
created  a  state  of  things  which  renders  him 
responsible  if  damage  accrues.  If,  by  the 
hypothesis,  the  cause  of  action  is  the  damage 
resulting  from  the  defendant's  act,,  or  an 
omission  to  alter  the  state  of  -things  he  has 
created,  why  may  not  a  fresh  action  be 
brought?  A  man  keeps  a  ferocious  dog, 
which  bites  his  neighbour.  Can  it  be  con"- 
tended  that,  Avhen  the  bitten  man  brings  his 
action,  ho  must  assess  damages  for  all  pos- 
sibility of  future  bites?  A  man  stores  wa- 
ter artificially,  as  in  Rylands  v.  Fletcher,  L. 
R.  3  H.  L.  330.  The  water  escapes,  and 
SAveeps  away  the  plaintiff's  house.  He  re- 
builds it,  and  the  artificial  reservoir  con- 
tinues to  lettk,  and  sweeps  it  away  again. 
Cannot  the  plaintiff  recover  for  the  second 
house,  or  must  he  have  assessed  in  his  first 
damages  the  possibility  of  any  future  inva- 
sion of  Avater  fioAving  from  the  same  reser- 
voir? With  respect  to  the  authorities,  the 
case  of  Xicklin  v.  Williams,  10  Exch.  259,  was 
urged  by  the  attorney  general  as  an  author- 
ity upon  the  question  now  before  your  lord- 
ships, by  reason  of  some  words  attributed  to 
Lord  Wcstbury  in  Backhouse  v.  Bonomi,  0 
H.  L.  Cas.  503",  512.  If  Lord  Westbury  real- 
ly did  use  the  words  attributed  to  him,  it  is, 
I  think,  open  to  doubt  in  what  sense  they 
are  to  be  understood.  Baron  Parke,  in  that 
case,  delivered  the  judgment  against  the 
plaintiffs,  recoA'ering  any  subsequently  ac- 
cruing damage,  becau.se,  he  said,  the  cause 
of  action  Avas  the  original  injury  to  the  right 
by  withdraAAing  support.  That- principle  is 
admittedly  wrong,  and  was  expressly  held 
to  be  wrong  in  Backhouse  v.  Bonomi,  9  H.  L. 
Cas.  503.  512,  since,  if  that  had  been  law, 
there  could  have  been  no  answer  to  the  plea 
of  the  statute  of  limitations  in  that  case.  It 
is  difficuU  to  folloAA^  the  master  of  the  rolls 
when  he  says  it  was  not  necessary  to  overrule 
Nicklin  v.  Williams,  10  Exch.  2."59,  by  that 
decision.  It  seems  to  me  to  haA'e  been  the 
whole  point  decided  in  Nicklin  v.  Williams, 
10  Exch.  2.j9;  and  how  that  case  so  decided 
can  be  an  authority  for  anything  I  am  at  a 
loss  to  understand. 

I  think  the  decision  of  this  case  must  de- 
pend, as  matter  of  logic,  upon  the  decision 
of  yom-  lordships'  house  in  Backhouse  v. 
Bonomi,  9  H.  L.  Cas.  503,  512;  and  I  do  not 
know  that  it  is  a  very  legitimate  inquiry, 
AA'hen  a  principle  has  been  laid  down  by  a 
tribunal  from  Avhich  there  is  no  appeal,  and 
which  is  bound  by  its  oavu  decisions,  wheth- 


er that  principle  is  upon  the  whole  advan- 
tageous or  couA-enient;  but,  if  such  considera- 
tions Avere  permissible,  I  think  Cockburn,  C. 
J.,  in  his  judgment  in  Lamb  v.  Walker,  3  Q. 
B.  Div.  389,  establishes  the  balance  of  con- 
venience to  be  on  the  side  of  the  law,  as 
established  by  Backhouse  v.  Bonomi,  9  H.  L. 
Cas.  503,  512.  I  cannot  logically  distingviish 
between  a  first  and  a  second  or  a  thii;d  or 
more  subsidences;  and  after  Backhouse  v. 
Bonomi,  9  H.  L.  Cas.  503,  512,  it  is  impos- 
sible to  say  that  it  was  wrong  in  any  sense 
for  the  defendant  to  remove  the  coal.  Cress- 
well,  J.,  has  said,  and  I  think  rightly,  that 
he  might  remove  every  atom  of  the  mineral. 

The  wrong  consists,  and,  as  it  appears  to 
me,  wholly  consists,  in  causing  another  man 
damage;  and  I  think  he  may  recover  for  that 
damage  as  and  when  it  occurs. 

For  tliese  reasons,  I  think  that  the  judg- 
ment appealed  from  should  be  affirmed,  with 
costs. 

LORD  BLACKBURN.  My  lords,  at  the 
close  of  the  argument  I  came  to  the  conclu- 
sion that  the  judgment  should  be  reversed; 
and  prepared  and  circulated  an  opinion  con- 
taining the  reasons  which  led  me  to  that  con- 
clusion. All  three  of  the  other  noble  and 
learned  lords  Avho  heard  the  argument  haA-e 
come  to  the  conclusion  that  the  judgment 
should  be  affirmed,  and  that  must  be  the 
judgment  of  the  house.  I  think  it  better 
to  read  the  reasons  AA'hich  I  had  before  writ- 
ten. 

This  is  an  appeal  against  an  order  of  tht> 
court  of  appeal,  bj'  Avliich  it  was  ordered 
that  the  judgment  of  HaAvkins,  J..,  delivered, 
on  further  consideration,  on  the  ISth  of  De- 
cember, 1883,  should  be  reversed,  and  judg- 
ment entered  for  the  plaintiff  for  damages 
to  be  assessed  by  an  arl)itrator  to  be  agreed 
upon,  with  costs.  Before  this  house  can  say 
whether  this  order  is  right  or  not,  it  is  nec- 
essary to  know  what  AA'as  the  case  on  whicii 
Hawkins,  J.,  directed  judgment,  which  this 
order  reverses,  to  be  entered  for  the  defend- 
ants. The  writ  was  issued  on  the  27th  of 
December,  1882. 

There  AA-as  an  alternative  defense  that  the 
causes  of  action  did  not,  nor  did  any  of  them, 
first  accrue  to  the  plaintiff  at  any  time  with- 
in six  years  before  the  commencement  of 
the  action;  and  therefore  it  lay  on  the  plain- 
tiff to  give  evidence  of  some  cause  of  action 
subsequent  to  the  27th  of  December,  1876. 

i  think  it  sufficiently  appears  in  Hawkins, 
J.'s,  judgment,  that  the  defendants  had 
worked  out  the  seams  of  coal  of  which  they 
were  lessees  as  long  ago  as  1SG8,  and  that 
they  had  done  nothing  from  that  time.  And 
as  the  defendants  seem  to  have  proved  and 
relied  on  the  fact  that  very  considerable  sub- 
sidences had  occurred  between  1808  and  1871. 
which  injured  the  plaintiff's  premises,  and 
that  the  defendants  had  been  called  upon 
to  do.  and  had  paid  for,  repairs  rendered  nec- 
essarv,  it  is  clear  that  the  original  Avorking 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


85 


Tvas  such  as  to  give  rise  to  a  cause  of  action 
:as  early  as  1871,  and  that  the  plaintiff  had 
then  known  it.  Lamb  v.  Walker,  3  Q.  B. 
Div.  389;  was  then  cited.  With  a  view  to 
enable  the  plaintiff's  counsel  to  fully  con- 
sider that  autliority,  it  was  arranged  that  the 
jury  should  be  discharged,  and  that  the  case 
should  be  reserved  for  further  consideration, 
it  being  expressly  admitted  by  the  plaintiff 
that  damage  was  done  by  subsidence  in  18'18. 
On  further  consideration,  the  plaintitT's 
counsel  is  stated  by  Hawkins,  J.,  to  have 
admitted  that  judgment  must  be  entered  for 
the  defendants,  unless  Lamb  v.  Walker,  3  Q. 
B.  Div.  389,  which  he  intended  to  question  in 
a  court  of  appeal,  was  overruled. 

I  think  it  convenient  here  to  see  what  was 
the  decision  in  Lamb  v.  Walker,  3  Q.  B.  Div. 
389,  so  as  to  see  whether,  while  it  stands  un- 
Teversed,  it  was  decisive  of  the  case  before 
Hawkins,  J.  Manisty,  J.  (at  page  391),  quotes 
so  much  of  the  plaintiff's  statement  of  claim 
as  was  material  in  that  case.  There  was  a 
first  claim,  on  which  the  referee  gave  i^d., 
which  I  do  not  notice.  I  think  the  fifth  and 
«ixth  paragraphs  are,  in  elfect,  the  same  as 
the  amended  statement  of  claim  in  the  action 
now  at  bar,  and  set  out  in  the  appendix  (page 
7).  But  the  only  plea  in  Lamb  v.  Walker,  3  Q. 
B.  Div.  289,  was  payment  into  court  of  £1.50, 
and  the  issue  joined  was  whether  that  was 
enough.  That  was  referred,  and  it  was  on 
the  award  that  the  question  was  raised.  The 
two  material  findings  on  the  award  are  stated 
at  page  392:  "(-)  I  estimate  the  damage 
actually  sustained  by  the  plaintiff  at  the  date 
of  the  commencement  of  the  action  *  *  * 
at  £400.  (3)  I  estimate  the  future  damage 
Avhich  will  be  sustained  by  the  plaintiff 
*  *  *  at  £150."  He  therefore  directed 
judgment  to  be  entered  at  £-100,  deducting 
the  £150  paid  into  court  from  those  two  sums, 
amounting  together  to  £550. 

The  question  was  raised  on  a  rule  to  re- 
duce the  damages,  and  was  '"whether  the 
plaintiff  was,  in  point  of  law,  entitled  to  re- 
cover the  sum  of  £150,  which  the  referee  finds 
will  be  sustained  by  the  plaintiii.  by  reason 
of  the  defendant's  acts."  The  decision  in 
Lamb  v.  Walker,  3  Q.  B.  Div.  389,  was  that  he 
was  so  entitled.  And  I  think  it  was  rightly 
thought  that,  if  damages  subsequent  to  a 
writ  issued  in  1871  could  be  recovered  in  an 
action  on  that  writ,  they  were  Included  in  the 
cause  of  action  then  existing,  and.  conse- 
quently, that  decision,  which  was  binding  on 
Hawkins,  J.,  was,  at  that  stage  of  the  pro- 
ceedings, conclusive  against  the  plaintiff. 

In  Lamb  v.  Walker,  3  Q.  B.  Div.  389,  Cock- 
burn,  L.  C.  J.,  differed  from  the  majority  of 
the  court.  He  said:  "Taking  the  view  I  do 
of  the  leading  case  of  Backhouse  v.  Bonomi, 
9  H.  L.  Cas.  503,  I  am  unable  to  concur  in 
holding  that,  in  addition  to  the  amount  to 
which  he  may  be  entitled  for  actual  damage 
sustained  through  the  excavation  of  the  ad- 
jacent soil  by  the  defendant,  the  plaintiff  is 
entitled  to  recover  in  respect  of  prospective 


damage;  that  is  to  say,  anticipated  damage 
expected  to  occur,  but  which  has  not  actually 
occurred,  and  which  may  never  arise."  lie 
enters  into  elaborate  reasoning  to  support  this 
opinion,  whieh  I  shall  examine  presently.  I 
think,  if  that  opinion  had  prevailed  in  T^amb 
V.  Walker,  3  Q.  B.  Div.  389,  and  a  judgment 
had  been  given  accordingly,  that  decision 
would  have  been,  not  only  not  an  authority 
against  the  plaintiff  in  this  case,  but  an  au- 
thority in  his  favour  as  far  as  the  defense  of 
the  statute  of  limitations  is  concerned. 

There  must  have  been  some  understanding 
between  the  counsel  for  the  plaintiff  and  for 
the  defendants  in  this  case  as  to  what  was  to 
be  done  in  cnse  the  final  decision  on  this  very 
important  question  was  in  conformity  with 
the  opinion  of  Coclcburn,  L.  C.  J.;  and  I 
think,  though  I  wish  it  had  been  expressly 
stated,  it  must  now  be  taken  that  the  defend- 
ants' counsel  agreed  that  he  would  not,  on 
the  evidence  then  before  the  court,  ask  for  a 
verdict  on  any  of  the  other  defenses,  but 
would  in  that  case  consent  to  have  the  dam- 
ages settled  by-  arbitration. 

Cockburn,  L.  C.  J.,  could  not,  in  Lamb  v. 
Walker,  3  Q.  B.  Div.  389,  have  meant  to  go 
so  far  as  to  say  that  if  a  house  had  been 
shaken,  and  was  evidently  going  to  fall,  but 
had  not  yet  completely  fallen,  when  the  writ 
issued,  the  plaintiff  could  only  recover  for 
what  had  already  occurred,  and  would  have 
to  bring  a  fresh  action  when  a  further  chim- 
ney fell.  He  has  not  quite  sufficiently  guard- 
ed himself  from  saying  so. 

In  the  present  case,  there  being  obscurity 
in  the  statement  of  the  facts,  it  was,  some- 
what late  in  the  day,  but  with  the  assent  of 
the  house,  agreed  to  add  this  further  admis- 
sion: "That,  if  the  owner  of  the  adjoining 
land  [one  Cooper]  had  not  worked  his  coal, 
there  would  have  been  no  further  subsidence; 
but  the  appellants  (defendants)  admit  that  if 
the  coal  under  the  respondent's  (plaintiff's) 
land  had  not  been  taken  out,  or  if  the  appel- 
lants (defendants)  had  left  sufficient  support 
under  respondent's  (plaintiff's)  land,  then  the 
working  of  the  adjoining  owner  would  have 
done  no  harm."  I  do  not  understand  this  to 
be  an  admission  that  the  subsidence  was  oc- 
casioned by  the  removal  by  the  defendants 
of  other  coal  than  that  the  removal  of  which 
occasioned  the  subsidence  in  1871.  Such  an 
admission  would  have  raised  a  different  ques- 
tion, and  one  the  solution  of  which  might 
have  required  a  further  investigation  as  to 
the  facts. 

I  will  now  proceed  to  consider  the  case  ex- 
actly as  if  it  was  on  appeal  from  Lamb  v. 
Walker,  3  Q.  B.  Div.  389.  I  must  first  ob- 
serve that  Manisty,  J.,  in  that  case  says  (3 
Q.  B.  Div.  394):  "It  is  a  well-settled  rule  of 
law  that  damages  resulting  from  one  and  the 
same  cause  of  action  must  be  assessed  and 
recovered  once  for  all."  And  it  is  not  dis- 
puted by  Cockburn,  L.  C.  J.,  that  the  rule  is 
established  that  "damages  resulting  from  one 
and  the  same  cause  of  action  must  be  as- 


ritESEXT  AND  PKOSPECTIVE  DAMAGES. 


sessed  and  recovered  once  and  for  all."  3 
Q.  B.  Div.  403.  He  joins  issue  with  Mauisty, 
J.,  on  the  application  of  this  I'ule  to  cases 
arising  from  subsidence  occasioned  by  min- 
ing so  as  to  remove  support.  And  I  think 
that  this  rule  is  established  as  the  general 
rule  of  law.  I  do  not  think  it  is  one  of  those 
rules  of  law  whie-h  depend  upon  natural  jus- 
tice. I  think  it  is  an  artiticial  rule  of  posi- 
tive law.  introduced  on  the  balance  of  con- 
venience and  inconvenience.  I  think  that, 
if  it  were  res  Integra,  a  great  deal  might  be 
said  against  the  expediency  of  the  rule.  I 
know  nowhere  where  the  objections  to  the 
expediency  of  the  rule  are'  more  clearly  and 
forcibly  stated  than  by  the  lord  chief  justice. 
3  Q.  B.  Div.  405. 

But  I  think  it  was  not  disputed  in  the  argu- 
ment that  at  all  events,  Avheu  the  act  com- 
plained of  is  one  Avhich  would  entitle  the 
plaintiff  to  maintain  an  action,  and  recover, 
as  a  matter  of  law,  at  least  nominal  danj- 
ages,  without  any  proof  of  damage  in  fact, 
the  rule  is  firmly  established;  and  I  think 
all  three  judges  in  the  court  below  agree 
that  the  question  is,  what  was  the  cause  of 
action  in  this  case?  They  adopt  the  reason- 
ing of  Cockburn,  L.  C.  J.,  in  Lamb  v.  Walk- 
er, 3  Q.  B.  Div.  389,  that  it  logically  follows 
from  Bonomi  v.  Backhouse,  El.  Bl.  &  El.  622, 
that  there  are  independent  and  distinct 
causes  of  action,  on  each  fresh  distinct  cause 
of  damage,  though  arising  from  the  same 
act  of  disturbing  the  soil.  Fry,  L.  J.,  puts  this 
very  clearly.  He  does  not  think  that  it  is 
concluded  by  authority,  and  says:  "I  think 
we  are  bound  to  determine  this  question  on 
principle.  Now,  with  reference  to  principle, 
it  appears  to  me  to  be  plain  that  all  damages 
which  result  from  one  and  the  same  cause  of 
action  must  be  recovered  at  one  and  the  same 
time,  and  therefore  we  are  driven  to  the  in- 
quiry, what  is  the  cause  of  action  in  a  case 
of  this  description?"  In  this  I  completely 
agree,  but  I  have  not  been  able  to  agree  with 
the  reasoning  by  which  it  is  sought  to  be' 
made  out  that  it  logically  follows  from  the 
decision  in  Bonomi  v.  Backhouse,  El.  Bl.  & 
El.  622,  in  this  house,  that  there  are  fresh 
causes  of  action  at  each  fresh  subsidence 
arising  from  the  old  disturbance  of  the 
strata,  occasioning  fresh  damage  to  the  same 
property.  I  decide  nothing  on  a  question 
which  does  not  here  arise,  viz.  whether,  if 
the  same  person  has  two  separate  tenements, 
say,  A.  on  the  north  of  the  seam  worked  by 
the  defendant,  and  B.  on  the  south  of  it,  and 
damage  has  actually  occurred  to  A.,  and  he 
sues  for  the  damage  done  to  it,  he  is  bound 
to  join  in  the  action  any  claim  which  he  has 
or  hereafter  may  have  as  to  B.  Whilst  the 
recent  decision  of  Brunsden  v.  Humphrey,  14 
Q.  B.  Div.  141,  in  the  court  of  appeal,  stands 
unreversed  (and  I  do  not  mean  to  cast  any 
doubt  on  it),  it  would  seem  that  he  is  not. 

It  is  desirable  to  see  what  the  case  of  Bo- 
nomi V.  Backhouse.  El.  Bl.  &  El.  622,  really 
was.     The   writ  was  issued  on  the  20th  of 


:May,  18.j6.  The  declaration  alleged  that  the- 
plaintiffs,  as  reversioners  of  certain  buildings 
in  the  occupation  of  Parkin,  were  entitled  to 
have  the  said  messuages  and  buildings  sup- 
ported by  the  mines  and  soil  "contiguous  and 
near  to  and  under  the  said  messuages  and 
buildings,"  and  then  in  the  usual  way  al- 
leged working  by  the  defendant,  disturbing 
the  support,  by  which  the  walls  of  the  said 
messuages  were  cracked  and  injured,  and  the 
ground  on  which  the  said  messuages  and 
buildings  stood  subsided.  The  pleas  were- 
(1)  not  guilty;  (2)  denial  of  Parkin's  occu- 
pancy  as  tenant  as  alleged;  (3)  denial  of  the 
reversion  being  in  the  plaintiffs  as  alleged; 
(4)  that  the  plaintiffs  were  not  entitled  to- 
have  the  said  messuages  and  buildings,  or 
either  of  them,  supported,  to  wit,  by  the 
mines,  earth,  and  soil  underground  contigu- 
ous; (5)  that  the  said  alleged  causes  of  action 
did  not  accrue  within  six  years  before  this 
suit.  Tlie  verdict  was  entered  for  the  plain- 
tiffs, subject  to  a  special  case.  One  very  im- 
portant question  raised  in  and  decided  by 
that  case  was  as  to  the  rights  of  buildings  to 
support,  as  distinguished  from  the  rights  of 
the  natural  soil  to  the  support.  .  With  that 
we  are  not  now  concerned.  The  arbitrator 
in  detail  stated  very  clearly,  and,  I  have  no- 
doubt,  very  accurately,  the  way  in  which  the 
cleety  coal  in  the  Auckland  coal  field  was- 
worked.  I  doubt  if  this  account  would  be 
found  to  be  applicable  in  most  coal  fields, 
I  think  I  may  say  that  it  would  not  in  some 
I  do  not  know  what  is  the  nature  of  the 
strata  in  the  Yorkshire  coal  field,  where  the 
present  coal  lies.  But  it  appeared  quite 
clear  on  his  statement  of  the  case  that, 
though  it  was  apparent  in  IS-jO  (more  than 
six  years  before  the  action)  that,  unless  steps 
were  taken  to  stop  the  progress  of  the  thrust 
then  in  operation,  the  plaintiff's  houses  would 
be  injured  by  the  thrust,  yet  no  actual  injury 
was  sustained  until  1854  (less  than  six  years 
before  the  action).  He  also  found  that  the 
tiirust  would  continue,  and  would  produce 
damage  in  future.  There  was  also  a  find- 
ing, at  page  631,  that  it  was  possible  to  stop 
the  thrust;  "but  the  expense  of  so  doing- 
would  have  been  very  great,  and  would,  on 
the  whole,  have  amounted  to  a  much  larger- 
sum  than  the  value  of  the  property  injured." 
He  then  proceeded  to  find  in  detail  the  facts 
on  which  it  was  to  depend  how  the  issues 
should  be  entered,  and  then  proceeded  as 
follows:  "If  the  verdict  is  to  be  entered  for 
the  plaintiffs  upon  the  issues  joined  on  the 
1st,  4th,  and  uth  pleas,  another  question  for 
the  court  is  (4)  whether  the  defendant  is  re- 
sponsible for  all  the  damage  which  has  been 
sustained  by  the  plaintiffs  by  reason  of  the 
injuries  to  their  said  messuages  and  build- 
ings above  described,  or  for  any  and  what 
part  of  that  damage,  and  lohether  he  is  re- 
sponsible in  any  and  what  resjJect  for  the 
probable  future  damage  lohich  may  he  occa- 
sioned in  manner  above  described,  or  for  the 
damage  occasioned  by  the  diminution  in  val- 


rKKSEXT  AND  I'KOSPECTIVE  DAMAGES. 


87 


lie  of  the  saiil  niossuagos  and  buildiiii;s  by 
reason  of  their  iuseciu-c  state  and  condition, 
or  the  injuries  wliich  will  probably  be  here- 
after occasioned  by  the  further  progress  of 
the  thrust  as  above  mentioned."  Had  this 
(luestion,  and  more  especially  the  part  of  it  I 
have  marked  in  italics,  been  answered,  it 
would  have  decided  the  question  afterwards 
raised  in  Lamb  v.  Walker,  a  Q.  B.  Div.  ;i89. 
But,  as  the  majority  of  the  queen's  bench  de- 
cided that  the  issue  on  the  fifth  plea  should 
be  entered  for  the  defendant,  the  fourth  ques- 
tion required  no  answer  from  those  three 
judges,  and  received  none.  ^Yiglltnlau,  J., 
does  give  an  answer  at  page  (338,  which  I 
think,  as  far  as  it  goes,  is  in  favovu'  of  Cock- 
burn,  L.  C.  J.'s,  view  in  T.amb  v.  Y\'alker,  3 
Q.  B.  Div.  380. 

The  defendants  do  not  appear  to  have 
thought  the  fourth  question  of  importance, 
for  nothing  Avhatever  was  said  in  the  argu- 
ment in  the  exchequer  chamber  about  it;  and 
though  the  expression  in  the  judgment  indi- 
cates approval  of  Nicklin  v.  Williams,  10 
Exch.  259,  so  far  as  regarded  the  principle 
"that  no  second  or  fresh  action  can,  under 
such  circumstances,  be  brought  for  subse- 
<iuently  accruing  damage,  all  the  damage  con- 
si^(iueut  upon  the  unlawful  act  being  in  con- 
templation of  law  satisfied  by  the  one  judg- 
ment or  accord,"  and  seems  in  favour  of  the 
view  taken  by  the  majority  in  Lamb  v.  Walk- 
er. 3  Q.  B.  Div.  389.  yet  I  do  not  think  it  can 
be  properly  said  that  the  court  of  exchequer 
chamber,  in  their  judgment,  put  their  minds 
to  that  question,  which  was  not  much,  if  at 
all,  argued  before  them.  Before  the  case  was 
taken  into  this  house,  the  damages  were 
agreed  on  at  £500  (hoAv  or  on  what  principle 
we  do  not  know);  and,  that  being  so,  the 
house  had  no  occasion  to  decide  anything 
on  that  fourth  question.  There  seems  to  have 
been  no  allusion  to  it  in  the  argument,  and  I 
think  no  one  of  the  lords  makes  any  reference 
to  it. 

I  think  that  Backhouse  v.  Bonomi,  9  H.  L. 
Cas.  503,  does  decide  that  there  is  no  cause 
of  action  until  there  is  actual  damage  sus- 
tained, and  does  decide  that  the  court  of  ex- 
che(iuer  erred  when,  in  Nicklin  v.  Williams, 
10  Exch.  259,  they  said  that  there  was  an 
injury  to  the  right  as  soon  as  the  support  was 
rendered  insutticient.  though  no  damage  had 
occurred.  But  I  do  not  think  that  it  all  fol- 
lows from  this  that  the  act  of  removing  the 
minerals  to  such  an  extent  as  to  make  the 
support  insufficient  Is  an  innocent  act,  ren- 
dered wrongful  by  the  subsequent  damage. 
That  would  be  a  great  anomaly,  for  I  think 
there  is  no  other  instance  in  our  law  where 
an  action  lies  in  consequence  of  damage 
against  a  person  doing  an  innocent  act.  There 
are  many  Avhere  no  action  lies  against  the 
doer  of  an  improper  act,  unless  and  until  dam- 
age accrues.  One  is  alluded  to  by  Lord  Cran- 
worth.  The  cause  of  action  against  the  speak- 
er of  words  not  actionable  per  se  consists  in 
the  speaking  of  the  words  and  the  damage. 


It  was  therefore  held  in  Littleboy  v.  Wright, 

I  Lev.  (59,  on  error  from  the  palace  court, 
that  an  infi-rior  court  had  no  jurisdiction  over 
an  action  for  calling  the  plaintiff  a  whore, 
whei-eby  the  plaintiff  lost  her  marriage,  unless 
both  the  speaking  of  the  words  and  the  loss 
of  the  marriage  were  averred  and  shewn  to 
have  occurred  within  the  jurisdiction.  But 
the  cause  of  action  Avas  as  much  the  speak- 
ing of  the  words  as  the  damage.  It  is  (piite 
clear  that,  if  the  words  Avere  spoken  under 
such  circumstances  as  to  be  privileged,  no 
amount  of  damage  could  give  rise  to  an  ac- 
tion. So,  Avhere  a  man  beats  another's  serv- 
ant, no  action  arises  to  the  master  until  there 
is  damage  by  the  loss  of  the  service;  but  no 
amount  of  damage  would  give  the  master  an 
action  if  the  beating  was  justifiable.  And  If 
a  man,  in  breach  of  the  duty  to  take  reason- 
able care  in  the  management  of  a  horse  in 
a  public  street,  gallops  along  it,  no  action 
lies  except  at  the  instance  of  a  person  who 
has  suffered  damage.  But  no  amount  of  dam- 
age will  give  a  cause  of  action  against  the 
owner  of  the  horse  unless  a  breach  of  duty 
is  shewn.  And  I  think  that  there  is  a  duty 
in  the  owner  of  land  on  which  his  neighbour's 
land  rests  to  respect  it,  and  take  care  that  he 
does  not  injure  that  support.  This  is  subject 
to  many  qualifications,  some  of  which  were 
considered  in  Corporation  of  Birmingham  v. 
Allen,  6  Ch.  Div.  284.  All  I  think  that  is 
really  decided  in  Backhouse  v.  Bonomi,  9  H. 
L.  Cas.  503,  at  least  in  this  house,  is  that 
where  there  is  a  breach  of  that  duty,  followed 
by  damage,  there  is  a  cause  of  action,  and 
that,  until  there  is  damage,  there  is  no  more 
cause  of  action  for  the  breach  of  duty  than 
there  would  be  in  a  person  who  saw  the 
breach  of  duty  in  the  reckless  rider  of  a 
horse,  but  was  not  damaged,  though  in  periL 

Littledale,  J.,  said  in  Hodsoll  v.  Stallebrass, 

II  Adol.  &  E.  301,  speaking  of  an  action  by  a 
master  for  beating  his  servant  per  quod  servi- 
tium  amisit:  "It  is  argued  that  a  fresh  ac- 
tion might  be  brought  from  time  to  time; 
but  that  is  not  so,  the  action  being  founded, 
not  upon  the  damage  only,  but  upon  the  un- 
lawful act  and  the  damage.  Without  the  spe- 
cial damage,  this  action  would  not  be  main- 
tainable at  the  plaintiff's  suit.  A  fresh  ac- 
tion could  not  be  brought  unless  there  were 
both  a  new  unlaAvful  act,  and  fresh  dam- 
age." 

This,  I  think,  indicates  the  real  principle- 
No  authority  was  cited  on  the  argument 
against  this  except  a  dictum  of  North,  C.  J., 
in  the  report  of  Lord  Townsend  v.  Hughes,  2 
Mod.  151,  where  he  is  reported  to  have  said: 
"This  is  a  civil  action,  brought  by  the  plaintiff 
for  words  spoken  of  him,  which,  if  they  are 
in  their  own  nature  actionable,  the  jury  ought 
to  consider  the  damage  which  the  party  may 
sustain;  but,  if  a  particular  averment  of  spe- 
cial damages  makes  them  actionable,  then 
the  jury  are  only  to  consider  such  damages 
as  are  already  sustained,  and  not  such  as 
may  happen  in  future,  because  for  such  the 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


plaintiff  may  have  a  new  action."  North,  C. 
J.,  was  a  great  lawyer;  and,  though  at  the 
moment  engaged  in  maintaining  what  seems 
a  very  bad  cause,  no  dictum  of  his  is  to  be 
slighted.  But  this,  if  he  did  say  it,  was 
utterly  irrelevant,  for  his  opinion  was  that 
the  words  spoken  were  actionable,  without 
any  special  damage;  such,  in  the  case  before 
him,  being  neither  averred  nor  proved.  I  can- 
not therefore  attach  much  weight  to  this  dic- 
tum, and  it  has  never,  I  thinlc,  been  acted 
upon.  I  come,  therefore,  to  the  conclusion 
that  the  opinion  of  the  majority  in  Lamb  v. 
Walker,  3  Q.  B.  Div.  389,  was  the  better  opin- 
ion. 

I  should  say  that  I  take  a  very  different 
view  of  Whitehouse  v.  I'ellowes,  10  C.  B.  (N. 
S.)  705,  784,  from  that  taken  by  the  master 
of  the  rolls.  I  think  that  was  an  action  for 
maintaining  a  nuisance,  which,  from  time  to 
time,  caused  fresh  damage.  What  WiUiams, 
J.,  there  says,  is:  "The  true  answer  to  this 
objection,  as  it  seems  to  me,  is  that  no  fresh 
cause  of  action  arises  from  each  fresh  dam- 
age, but  that  where  there  is  not  only  a  fresh 
damage,  bvit  a  continuance  of  the  cause  of 
damage,  such  continuance  of  the  Avrongful  act 
which  caused  tlxe  damage  constitutes  a  fresh 
cause  of  action." 

This  was  how  the  court  of  error  in  Ireland 
imderstood  that  case  in  Devery  v.  Canal  Co., 
9  Ir.  R.  C.  L.  194.  So  understanding  it,  and 
approving  of  it,  Palles,  C.  B..  in  that  case, 
gave  judgment  for  the  plaintiff.  How  that 
case  is  in  any  way  in  conflict  in  principle  with 
Nicklin  v.  Williams,  10  Exch.  259,  I  am  un- 
able to  perceive. 

Bowen,  L.  J.,  says  that,  "applying  the  rea- 
soning in  Whitehouse  v.  Fellowes,  10  0.  B. 
(N.  S.)  7G5,  784,  it  seems  to  me  that  there  has 
really  been  not  merely  an  original  excava- 
tion or  act  done,  but  a  continual  withdrawal 
of  support."  If  I  could  take  that  view  of 
the  facts,  I  should  agree  in  the  conclusion. 
But  I  cannot  take  that  view  of  the  facts. 
One  consequence  of  doing  so  would  be  that 
where  the  owner  m  fee  of  a  seam  of  coal 
worked  it  out,  and  died  leaving  it  in  this 
state,  the  ,heir  of  the  land  in  which  the 
worked  out  seam  lay  woidd  be  liable  to  an 
action  for  continuing  a  nuisance.  Surely,  the 
facts  cannot  be  such  as  would  produce  that 
effect.  And,  unless  tliey  are,  I  do  not  think 
that  they  can  make  the  defendants  respon- 
sible on  this  groTuxl. 

I  therefore  think  that  the  order  appealed 
against  should  be  reversed,  and  the  judg- 
ment of  the  18th  ot  December,  1883,  restored. 
The  noble  and  learned  lords  who  heard  the 
case  have  each  of  them  come  to  an  opposite 
conclusion,  and  the  order  of  the  house  will 
be  in  conformity  with  their  view. 

LORD  BRAMWELL.  My  lords,  laying 
down  genera]  propositions  is  attended  with 
the  same  danger  as  giving  definitions.  Some 
necessary  qualification  or  excei'tion  is  gen- 
erally omitted.     Moreover,  such  propositions 


are  often  and  justly  called  "obiter."  With 
these  dangers  before  my  eyes,  I  shall,  never- 
theless, venture  on  some  abstract  proposi- 
tions. 

It  is  a  rule  that  when  a  thing  directly 
wrongful  in  itself  is  done  to  a  man,  in  itself 
a  cause  of  action,  he  must,  if  he  sues  in 
respect  of  it,  do  so  once  and  for  all.  As,  if 
he  is  beaten  or  wounded,  if  he  sues,  h£  must 
sue  for  all  his  damage,— past,  present,  and 
future,  certain  and  contingent.  He  cannot 
maintain  an  action  for  a  broken  arm,  and 
subsequently  for  a  broken  rib,  though  he  did 
not  know  of  it  when  he  commenced  his  first 
action.  But,  if  he  sustained  two  injuries 
from  a  blow,— one  to  ills  person,  another  to 
his  property;  as,  for  instance,  damage  to  a 
watch, — there  is  no  doubt  that  he  could  main- 
tain tAvo  actions  in  respect  of  the  one  blow. 
I  may  apply  the  test  I  mentioned  in  the  ar- 
gument. If  he  became  bankrupt,  the  right 
in  respect  of  the  watch  would  vest  in  his 
trustee;  that  for  damage  to  his  person  would 
rem.ain  in  him.  I  have  put  the  case  of  a 
trespass.  The  same  woidd  be  true  of  an  ac- 
tion for  consequential  damages.  A  man 
slandered  or  libeled  by  words  actionable  in 
themselves  must  sue,  if  at  all,  for  all  iiis' 
damage  in  one  action.  Probably,  if  he  sus- 
tained special  damage,  as  that  he  lost  a  con- 
tract through  being  charged  with  theft,  he 
might  maintain  one  action  for  the  actionable 
slander,  another  for  the  personal  loss,— cer- 
tainly if  the  case  in  Siderfin  is  right.  But 
it  is  not  necessary  to  decide  this. 

I  now  come  to  the  case  of  where  the  wrong 
is  not  actionable  in  itself,  is  only  an  injuria, 
but  causes  a  damnum.  In  such  a  case  it 
would  seem  that  as  the  action  was  only 
maintainable  in  respect  of  the  damage,  or 
not  maintainable  till  the  damage,  an  action 
sliould  lie  every  time  a  damage  accrued  from 
the  wrongful  act.  For  example,  A.  says  to 
B.  that  C.  is  a  swindler.  B.  refuses  to  enter 
into  a  contract  with  C.  C.  has  a  cause  of 
action  against  A.  D.,  who  was  present  and' 
heard  it,  also  refuses  to  make  such  a  con- 
tract. Surely,  another  action  would  lie. 
And  so  one  would  think  if  B.  subsequently 
refuses  another  contract.  Of  course,  one  can 
see  that  frauds  might  be  practiced.  So  they 
may  in  any  state  of  law.  But  I  cannot  see 
why  the  second  action  would  not  be  main- 
tainable if  the  second  loss  was  traced  to  the 
speaking.  And  perhaps  one  might  apply  tlie 
same  test.  Would  not  the  first  right  of  ac- 
tion pass  to  the  trustees  of  C.  if  he  became 
bankrupt?  If  the  second  loss  was  after  the 
bankrupt's  discliarge,  it  would  not. 

There  is  still  another  class  of  cases  to  be 
considered,  viz.  those  where  the  act  causing 
damage  is  not  in  itself  wrongful.  No  easier 
case  can  be  taken  than  the  above  ground 
case  of  an  excavation,  whereby  an  adjoin- 
ing owner's  soil  is  let  down.  It  cannot  be 
said  that  the  act  of  excavation  is  unlawful. 
A  contract  to  do  it  could  be  enforced.  No 
injunction  against  it  could  be  obtained  uu- 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


89 


less  injury  was  imminent  and  certain.  What 
would  be  the  rights  of  the  person  damaged 
in  such  a  case?  I  think  the  former  reason- 
ing would  apply.  If  there  was  an  excava- 
tion 100  yards  long,  and  50  feet  of  the  ncigli- 
houriug  soil  fell  in,  the  right  of  action  would 
l)e  in  respect  of  those  50  feet,  and  not  only 
in  respect  of  what  had  fallen  in.  but  what 
■n-ould  in  future  fall  in  along  the  50  feef. 
But,  if  afterwards  the  other  50  feet  fell  in, 
there  would  be  a  fresh  cause  of  action. 
Surely,  this  must  be  so.  If  10  feet  at  one 
end  fell  in.  and  afterwards  10  feet  at  the 
other,  it  would  be  impossible  to  say  that 
there  would  not  be  two  causes  of  action.  If 
the  excavation  was  on  two  sides  of  a  square, 
the  same  consequences.  Tlie  attorney-gen- 
eral denied  this,  and  was  driven  to  do  so. 
But  suppose  A.  owned  the  adjoining  proper- 
ty on  one  side,  and  B.  that  Avliich  was  at 
right  angles  to  it;  there  must  then  be  two 
<;auses  of  action. 

Now,  apply  this  reasoning  to  the  present 
-case.  There  are  by  the  admission  of  the 
parties  two  separate  and  distinct  damages 
caused  to  the  plaintiff  by  the  "acts"— includ- 
ing in  that  word  omissions— of  the  defend- 
ants. One  a  removal  of  coal,  and  nonprovid- 
ing  of  supports,  which  caused  a  subsidence 
in  ISfiS.  A  cause  of  action  accrued  then. 
Another  cause  of  action  is  the  removal  of 
coal,  including,  perhaps,  the  coal  which  caus- 
•ed  the  first  subsidence,  but  doubtless  also  a 
removal  of  coal  extending  to  a  greater  dis- 
tance, and  not  immediately  under  the  plain- 
tiff's land,  and  the  nonproviding  against  the 
consequences,  which,  when  the  adjoining 
owner  to  the  defendants  removed  his  coal, 
as  he  lawfully  might  (though  I  think  tliat 
immaterial),  caused  a  creep  in  the  defend- 
ants' land,  which  in  time  caused  the  fiu'ther 
subsidence.  I  think  this  gives  a  second 
cause  of  action.  I  think,  therefore,  the  judg- 
ment was  right. 

It  seems  to  me  not  to  matter  that  the  sub- 
sidence was  of  the  same  spot,  nor  that  the 
immediate  cause  of  the  second  subsidence 
was  the  nonexistence  of  coal  underneath  that 
«pot.  Two  damages  have  been  occasioned  to 
the  plaintiff.— one.  directly  and  immediately 
by  the  removal  of  the  coal  under  his  surface; 
the  other,  by  that  and  removal  of  other  coal, 
and  consequent  creeping  and  further  subsi- 
dence. The  attorney  general,  as  I  have  said, 
denied  that  there  cordd  be  two  causes  of  ac- 
tion if  two  different  parts  of  the  plaintiff's 
land  subsided  at  two  dift'erent  times.  But 
surely  there  must  be.  Suppose  the  two 
pieces  belonged  to  different  owners,  as  I 
have  suggested. 

Of  course,  one  can  see  the  danger  and  in- 
convenience that  will  follow.  This  damage 
accrues  many  years  after  the  defendants' 
act  or  omission  which  has  caused  it.  If  my 
reasoning  is  right,  many  years  hence  there 
might  be  a  further  action  from  some  further 
subsidence.  But  the  inconvenience  is  as 
great  the  other  way;    for,  if  the  defendants 


are  right,  it  fohows  that,  on  the  least  sub- 
sidence happening,  a  cause  of  action  accrues 
once  and  for  all,  the  statute  of  limitiitions  be- 
gins to  run,  and  the  person  injured  must 
bring  his  action,  and  claim  and  recover  for 
all  damage,  actual,  possible,  or  contingent, 
for  all  time. 

As  to  the  authorities,  Backhouse  v.  Bonomi, 
9  H.  L.  Cas.  50.3,  seems  clearly  in  the  plain- 
tiff's favour.  Indeed,  I  have  thought  of  lim- 
iting my  judgment  to  the  folloAving  remark 
on  it.  It  decided  that  the  excavation  of  the 
coal  was  not  wrongful,  and  that  the  cause  of 
action  accrued  when  the  damage  arose.  The 
damage  now  complained  of  ai'ose  at  the  last 
subsidence.  That  subsidence  was  no  part  of 
or  continuance  of  the  former  subsidence,  nor 
caused  by  the  same  cause  only,  but  by  a  fur- 
ther cause;  in  this  sense,  that  without  this 
cause  the  subsidence  would  not  have  taken 
place.  Tlierefore  no  cause  of  action  in  re- 
spect of  it  arose  till  it  happened. 

LORD  FITZGERALD.  My  lords,  the  real, 
though  not  the  formal,  question  for  your 
lordships'  determination,  is  whether  Lamb  v. 
Walker,  3  Q.  B.  Div.  389,  was  correctly  de- 
cided. :My  noble  and  learned  friend  (Lord 
BLACKBURN)  rightly  deals  with  this  appeal 
in  the  same  light  as  if  it  was  an  api^eal  from 
Lamb  v.  Walker,  3  Q.  B.  Div.  389.  I  do  not 
propose  to  follow  my  noble  and  learned  friend 
in  his  instructive  examination  of  Lamb  v. 
Walker,  3  Q.  B.  Div.  .389,  and  Backhouse  v. 
Bonomi,  9  H.  L.  Cas.  503,  and  his  criticisms 
on  those  cases;  but  I  think  that  we  may  de- 
duce from  the  authorities  some  propositions 
as  now  settled  in  law,  and  applicable  to  the 
circumstances  of  the  appeal  now  before  your 
lordships'  house,  and  to  similar  cases,  I  pro- 
ceed to  state  those  propositions,  though  in 
doing  so  I  am  conscious  of  the  danger  point- 
ed out  by  my  noble  and  learned  friend,  Lord 
BRAMWEUI 

(1)  That  the  owner  of  the  surface  has  .a 
natural  and  legal  right  to  the  undisturbed 
enjoyment  of  that  surface,  in  the  absence  of 
any  binding  agreement  to  the  contrarj'. 

(2)  That  the  owner  of  the  subjacent  min- 
erals may  excavate  and  remove  them  to  the 
utmost  extent,  but  should  exercise  that  right 
so  as  not  to  disturb  the  lawful  enjoyment  of 
the  owner  of  the  surface. 

(3)  That  the  excavation  and  removal  of  the 
minerals  does  not,  per  se.  constitute  any  ac- 
tionable invasion  of  the  right  of  the  owner  of 
the  surface,  although  subsequent  events 
show  that  no  adequate  supports  have  been 
left  to  sustain  the  surface. 

(4)  But  that  when,  in  consequence  of  not 
leaving  or  providing  sufficient  supports,  a  dis- 
turbance of  the  surface  takes  place,  that  dis- 
turbance is  an  invasion  of  the  right  of  the 
owner  of  the  surface,  and  constitutes  his 
cause  of  action. 

The  foundation  of  the  plaintiff's  action, 
then,  seems  to  be  that,  although  the  excava- 
tions of  the  minerals  were  acts  by  the  de- 


90 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


fentlants  in  tlie  lawful  enjoyment  of  their 
own  property,  yet,  when  subsequently  dam- 
age arose  therefrom  to  the  plaintiff  in  the  en- 
joyment of  his  property,  the  defendants  be- 
came responsible.  For,  although  the  law  en- 
courages a  man  to  the  free  use  of  his  own 
property,  yet  if,  in  doing  a  lawful  thing  in 
tlie  enjoyment  of  that  property,  he  occasions 
damage  to  his  neighbour,  which  might  have 
been  avoided,  he  will  be  answerable  for  that 
damage  whenever  it  occurs. 

Now,  as  to  the  cause  of  action  in  ISGS; 
there  is  no  doubt  that  the  mere  excavation 
prior  to  or  in  18GS  was  legitimate,  and  not  of 
itself  alone  the  foundation  of  any  right  of 
action;  but  when  the  subsidence  of  that  year 
took  place,  and  caused  damage  to  the  plain- 
tiff's houses,  then  the  defendants  became 
liable  to  malie  good  that  loss,  because,  though 
their  acts  were  in  the  lawful  use  of  their 
own  property,  yet  the  injurious  consequences 
to  the  plaintiff  might  have  been  avoided.  It 
is  the  disturbance,  then,  when  it  arises,  that 
is  the  cause  of  action,  and  not  the  prior  legiti- 
mate acts  of  the  owners  of  the  minerals  in 
the  lawful  enjoyment  of  their  own  property. 
But,  although  this  be  true,  yet,  still,  the 
question  which  arose  in  Lamb  v.  Walker,  3 
Q.  B.  Div.  38.9,  and  Avhich  was  not  expressly 
decided  by  this  house  in  Backhouse  v.  Bono- 
mi.  9  H.  L.  Cas.  503,  remains  now  to  be  con- 
sidered and  finally  decided.  There  was  a 
subsidence  in  18G8,  causing  special  damage, 
giving  the  plaintiff  a  cause  of  action;  and  in 
respect  of  thai;  damage  he  accepted  compen- 
sation, which,  it  seems  agreed,  is  equivalent 
to  a  recovery  of  damages  in  an  action  if  such 
an  action  had  then  been  instituted. 

In  1882  a  fresh  and  distinct  subsidence  took 
place,  causing  special  damage  to  the  plaintiff. 
It  was  admitted  before  your  lordships,  rather 
late  in  the  argument,  but  for  the  purpose  of 
better  enabling  your  lordships  to  come  to  a 
conclusion:  "That  after  the  partial  subsi- 
dence, in  18G8,  the  strata  remained  practical- 
ly quiescent  until  the  working  of  the  coal  in 
the  next  adjoining  land  by  the  owner  thereof, 
in  the  year  1881,  which  working  caused  a 
creep  and  a  further  subsidence."  And  fur- 
ther: "That,  if  the  owner  of  the  adjoining 
land  had  not  worked  his  coal,  there  would 
have  been  no  further  subsidence,  and  that  if 
the  coal  under  the  respondent's  (plaintiff's) 
land  had  not  been  taken  out,  or  if  the  appel- 
lants (defendants)  had  left  sutficient  support 
under  the  respondent's  (plaintiff's)  land,  then 
the  working  of  the  adjoining  owner  would 
have  done  no  harm." 

It  will  be  observed  on  these  admissions  that 
the  partial  subsidence  of  18G8  had  practically 
ceased,  and  that  a  fresh  creep  and  subsidence 
took  place  in  1882,  which  would  not  have 
taken  place  if  the  defendants  had  left  suf- 
ficient natural  support  under  the  plaintiff's 
land,  or,  we  may  add,  had  substituted  ade- 
quate artificial  support. 

There  can  be  no  doubt  that,  though  there 
has  been  no  act  of  commission  by  the  defend- 


ants since  the  completion  of  the  excavation 
of  18GS,  yet,  if  there  had  been  no  subsidence- 
causing  damage  to  the  plaintiff  prior  to  that 
of  1882,  the  present  action  could  be  maintain- 
ed. But  it  is  alleged  that  as  the  plaintiff  had 
a  complete  cause  of  action  in  18G8,  arising 
from  the  prior  excavation  and  the  subsidence 
of  1868,  the  statute  of  limitations  then  com- 
menced to  operate,  and  has  barred  the  present 
action.  It  was  further  argued  that  in  1868 
the  plaintiff  could  and  ought  to  have  insisted 
on  recovering  once  and  for  all  any  damage 
that  might  arise  prospectively  from  the  ex- 
cavation of  18G8,  according  to  the  rule  of  law 
which,  in  order  to  prevent  a  multiplicity  of 
actions,  provides  that  damages  resulting  from 
one  and  the  same  cause  of  action  must  be  as- 
sessed   and  recovered  once  and  for  all. 

That  rule  was  applied  l)y  the  majority  of 
the  court  in  Lamb  v.  Walker,  3  Q.  B.  Div.  389, 
and  is  not  controverted.  It  is  not  inflexible, 
and  admits  of  exceptions. 

We  have  to  consider  what  was  the  cause  of 
action  in  1868.  and  whether  the  cause  of  ac- 
tion of  1882  (the  creep  and  subsidence  of  1882) 
is  one  and  the  same  cause  of  action  as  that 
of  18G8.  If  it  is  so,  then  the  defendants  are 
entitled  to  succeed  on  the  defense  of  the  stat- 
ute of  limitations. 

This  appeal  represents  a  class  of  cases  pe- 
culiar and  exceptional,  to  meet  which,  and  to 
avoid  grave  inconvenience,  if  not  injustice^ 
our  flexible  common  law  has  somewhat  mould- 
ed itself.  I  deprecate  discussing  some  of  the 
arguments  addressed  to  us,  which  seemed  to 
me  to  be  too  fine,  such  as,  for  instance, 
whether  the  original  act  of  the  defendants- 
was  "innocent,"  or  "perfectly  innocent."  The 
question  here  is  not  whether  the  original  act 
of  tlie  defendants  was  "innocent,"  but 
whether  the  defendants  liave  occasioned  dam- 
age to  the  plaintiff"  without  any  iuevitalile- 
necessitv. 

I  am  of  opinion  that  Cockburn,  L.  C.  J.^ 
in  the  case  of  Lamb  v.  Walker,  3  Q.  B.  Div. 
389,  and  the  court  of  appeal  in  the  case  be- 
fore us.  were  respectively  right  in  resting  on 
Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  and 
deducing  from  it  a  principle  which  governs 
the  question. 

Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  is 
not  satisfactorily  reported.  We  gather  from 
the  report  in  your  lordships'  house  with  some 
difticulty  what  was  actually  decided.  Mr. 
Manisty,  in  his  argument  in  that  case  at  your 
lordships'  bar,  puts  it  thus:  "The  act  done 
was  a  perfectly  innocent  act  at  the  time  it 
was  done.  The  argument  on  the  other  side 
is  that  it  must  be  treated  as  having  been  in- 
jurious, because  it  might  afterwards  become 
so.  If  the  action  had  been  brought  when 
the  act  was  first  done,  the  answer  would  have- 
been  that  the  defendant  had  a  right  to  do 
the  act,  and  that  no  damage  had  been  oc- 
casioned." Lord  Westbury  says:  "I  think  it 
is  abundantly  clear,  both  on  principle  and 
authority,  that,  when  the  enjoyment  of  the 
house  is  interfered  with  by  the  actual  occur- 


PRESENT  AND  FliOSrECTIVE  DA:\IAGE8. 


91 


rence  of  the  uiischief,  the  cause  of  action  then 
arises,  ami  the  action  may  then  be  maintain- 
ed." And  Lord  Cranworth  adds:  "It  has 
been  supposed  that  the  right  of  the  party 
whose  laud  is  interfered  with  is  a  rijiht  to 
what  is  called  the  pillars  or  the  support.  In 
truth,  his  right  is  to  the  ordinary  enjoyment 
of  his  land,  and.  until  that  ordinary  enjoy- 
ment is  interfered  wltli,  he  has  nothing  of 
which  to  complain.  That  seems  the  prin- 
ciple on  which  the  case  ought  to  be  disposed 
of." 

It  seems  to  me  that  Backhouse  v.  Bonomi, 
9  H.  L.  Cas.  503.  did  decide  that  the  removal 
of  the  subjacent  strata  was  an  act  (I,  will  not 
say  an  innocent  act)  done  in  the  legitimate 
exercise  of  ordinary  ownership,  which,  per  se, 
gave  no  right  of  action  to  the  Owner  of  the 
surface,  and  that  the  latter  had  no  right  of 
action  until  his  enjoyment  of  the  surface  was 
actually  disturbed.  The  disturbance  then 
constituted  his  right  of  action. 

There  was  a  complete   cause  of  action  in 


1SG8,  in  respect  of  which  compensation  was 
given,  but  there  was  a  liability  to  further  dis- 
turbance. The  defendants  permitted  the 
state  of  things  to  continue  without  taking  any 
steps  to  prevent  tlie  occurrence  of  any  future 
injury.  A  fresh  subsidence  took  place,  caus- 
ing a  new  and  further  disturbance  of  the 
plaintiff's  enjoyment,  which  gave  him  a  new 
and  distinct  cause  of  action. 

If  this  view  is  correct,  then  it  follows  that 
the  cause  of  action  now  insisted  on  by  the 
plaintiff  is  not  the  same  cause  of  action  as 
that  of  1S<38,  but  is  in  point  of  law,  as  it  is 
physically,  a  new  and  independent  cause  of 
action,  arising  in  1882.  and  to  whicli  the  de- 
fense of  the  statute  of  limitations  is  not  ap- 
plicable. 

The  necessary  conclusion  is  that  Lamb  v. 
AValker,  3  Q.  B.  Div.  389,  was  not  correctly 
decided,  and  that  the  able  reasoning  of  Cock- 
burn,  L.  C.  J.,  in  that  case  ought  to  have  pre- 
vailed. Order  appealed  from  affirmed,  and 
appeal  dismissed,  with  costs. 


<J2 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


JOSEPH  SCHLITZ  BREWING   CO.   v. 
COMPTON. 

(32  N.  E.  693,  142  111.  511.) 
Supreme  Court  of  Illinois.     Nov.  2,  1892. 
Appeal    from   appellate    court,  Third    dis- 
trict. 

Action  on  the  case  by  Sophie  Compton 
ajyainst  the  Joseph  Schlitz  Brewing  Com- 
pany. Plaintiff  obtained  judgment,  which 
was  afiirmed  by  the  appellate  court.  De- 
fendant appeals.     Reversed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  MAGRUDER,  J.: 

This  is  an  action  on  the  case,   begun  on 
April  17,   1S90,  in  the  circuit  court  of  San- 
gamon county,  by  the  appellee  against  the 
appellant  company.     In  the  trial  court  the 
verdict  and  judgment  were  in  favor  of  the 
plaintiff,  which  judgment  has  been  affirmed 
by    the    appellate    court.     The    declaration 
consists  of  two  counts.     The  first  count  al- 
leges that  plaintiff  was  possessed  of  certain 
premises   in   Springfield,   in   which    she   and 
her  family  resided,  and  that  the  defendant, 
to  wft,  on  April  20,  1SS.5,  wrongfully  erected 
a  certain  building  near  said  premises  in  so 
careless,  negligent,  and  improper  a  manner 
that  on  said  day  and  afterwards,  "and  be- 
fore the  commencement  of  this  suit,"  large 
quantities     of     rain     water     flowed     upon, 
against,    and    into    said    premises    and    the 
walls,     roofs,     ceilings,     beams,     papering, 
floors,    stairs,   doors,   cellar,    basement,   and 
other  parts  thereof,  and  weakened,  injui-ed, 
and  damaged  the  same,  by  reason  whereof 
said    messuage   and   premises    became   and 
are  damp  and  less  fit  for  habitation.     The 
second  count  alleges  that  plaintiff  was  the 
possessor,  occupier,  and  owner  of  said  mes- 
suage and  premises,  in  which  she  and  her 
family  dvr'elt,  and  the  defendant,  to  wit,  on 
said  day,  caused  quantities  of  water  to  run 
into,  against,  and  upon  the  same,   and  the 
walls,  roofs,  floors,  cellars,  etc.,  thereof,  and 
thereby   greatly  weakened   injured,    wetted, 
and  damaged  the  same.     By  reason  where- 
of said  premises  became  and  were  and  are 
damp,  incommodious,  and  less  fit  for  habi- 
tation.    The     plea    was     not     guilty.     The 
proof  tends  to  show  that  plaintiff's  building 
is  a  two-story  brick  building,  with  a  cellar 
underneath,  the  front  room  on  the  first  floor 
being  used  as  a  butcher's  shop,  and  the  rest 
of  the   building  being  used  as  a  dwelling; 
that  her  building  was  erected  several  years 
before  that  of  the  defendant;    that  defend- 
ant's building  is  on  the  lot  west  of  plain- 
tiff's lot,  and  is  about  60  feet  long,  having 
an  office  in  front  and  a  beer-bottling  estab- 
lishment  in    the    rear,   and    has    one    roof, 
which    slants    towards   plaintiff's    property; 
that  there  are  three  windows  on  the  west 
•side  of  plaintiff's  house,   besides  the  three 
<-ellar  windows;    that   her   wall   is   a   little 
over  two  feet  from  the  west  line  of  her  lot; 
tliat  when  it  rains  the  water  flows  against 
her  west  wall,  and  some  of  it  into  her  win- 


dows and  cellar  from  the  roof  of  defend- 
ant's building;  that  the  eave  trough  is  so 
far  below  the  eave  that  the  water  runs  over 
it  into  the  windows,  etc. 

Palmer  &   Schutt,   for  appellant     Patton 
&  Hamilton,  for  appellee. 

MAGRUDER,  J.  (after  stating  the  facts). 
Proof   was  introduced   of   damage   done   to 
plaintiff's  property  after  the  commencement 
of  the  suit  by  reason  of  rain  storms  then 
occurring.     The  defendant   asked,   and   the 
court  refused  to  give,  the  following  instruc- 
tion:   "The  court  instructs  the  jury  that  the 
suit  now  being  tried  was  commenced  in  the 
month  of  April,  1S90,  and  that  they  are  not 
to  take  into  consideration  the  question  as  to 
whether  or  not  any  damage  has  accrued  to 
plaintiff's  property  since  the  commencement 
of    this    suit."     The    question    presented    is 
whether   plaintiff    was    entitled    to    recover 
only  such  damages  as  accrued  before  and 
up  lo  the  beginning  of  her  suit,  leaving  sub- 
sequent damages  to  be  sued  for  in  subse- 
quent suits,  or  whether  she  was  entitled  to 
estimate  and  recover  in  one  action  all  dam- 
ages   resulting    both    before    and   after   the 
commencement  of  this  suit.     The  rule  orig- 
inally obtaining  at  common  law  was,  that 
in  personal  actions  damages  could  be  I'ecov- 
ered  only  up  to  the  time  of  the  commence- 
ment of  the  action.     3  Com.  Dig.  tit.  "Dam- 
ages,"  D.     The    rule  subsequently   prevail- 
ing in  such  actions  is  that  damages  accru- 
ing after  the  commencement  of  the  suit  may 
be   recovered,   if   they  are  the  natural  and 
necessary  result  of  the  act  complained  of, 
and   where  they  do   not  themselves  consti- 
tute a  new  cause  of  action.     Wood's  Mayne, 
Dam.  §  103;    Blrchard  v.  Booth,  4  Wis.  67; 
Slater  v.  Rink.  IS  111.  527;    Fetter  v.  Beale, 
1  Salk.  11;    Howell  v.  Goodrich,  69  111.  556. 
In  actions  of  trespass  to  the  realty,  it  is  said 
that  damages  may  be  recovered  up  to  the 
time    of    the   verdict,    (Com.    Dig.    363,    tit. 
"Damages,"    D;)     and    the   reason    why,   in 
such  cases,  all  the  damages  may  be  recov- 
ered in  a  single  action,  is  that  the  trespass 
is  the  cause  of  action,  and  the  injury  result- 
ing is  merely  the  measure  of  damages.     5 
Am.  &  Eng.  Enc.  Law,  p.  16,  case  cited  in 
note  2.     But  in  the  case  of  nuisances  or  re- 
peated   trespasses    recovery   can    ordinarily 
be  had  only  up  to  the  commencement  of  the 
suit,    because  every   continuance   or   repeti- 
tion  of   the  nuisance  gives   rise  to   a   new 
cause  of  action,  and  the  plaintilf  may  bring 
successive  actions  as  long  as  the  nuisance 
lasts.     McConnel  v.  Kibbe,  29  111.  483,  and 
33   111.   175;  Railroad  Co.  v.  Moffitt,  75   111. 
524;  Railroad  Co.  v.  Schaffer,  124  111.  112,  16 
N.  E.  239.     The  cause  of  action,  in  case  of 
an  ordinary  nuisance,   is   not  so  much  the 
act  of  the  defendant  as  the  injurious  conse- 
quences resulting  from   his  act,  and  hence 
the  cause  of  action  does  not  arise  until  such 
consequences  occur;    nor   can  the  damages 


PRESENT  AND  PllOSPECTIVE  DAMAGES. 


95 


be  estimated  bej-oud  the  date  of  bringing 
ttie  first  suit.  5  Am.  &  Eng.  Enc.  Law,  p. 
17,  and  cases  in  notes.  It  has  been  lield, 
however,  tliat  wliere  permanent  structures 
are  erected,  resulting  in  injury  to  adjacent 
realty,  all  damages  may  be  recovered  in  a 
single  suit.     Id.  p.  20,  and  cases  in  note. 

But  there  is  much  confusion  among  the 
authorities  which  attempt  to  distinguisli  be- 
tween cases  where  successive  actions  lie 
and  those  in  which  only  one  action  may  be 
maintained.  This  confusion  seems  to  arise 
from  the  different  views  entertained  in  re- 
gard to  the  circumstances  under  which  the 
injury  suffered  by  the  plaintiff  from  the  act 
of  the  defendant  shall  be  regarded  as  a  per- 
manent injury.  "The  chief  dilticulty  in  this 
subject  concerns  acts  Avhich  result  in  what 
effects  a  permanent  change  in  the  plaintiff's 
land,  and  is  at  the  same  time  a  nuisance  or 
trespass."  Sedg.  Dam.  (Sth  Ed.)  §  94.  Some 
cases  hold  it  to  be  unreasonable  to  assume 
that  a  nuisance  or  illegal  act  will  continue 
forever,  and  therefore  refuse  to  give  entire 
damages  as  for  a  permanent  injury,  but  al- 
low such  damages  for  the  continuation  of 
the  wrong  as  accrue  up  to  the  date  of  the 
bringing  of  the  suit.  Other  cases  take  the 
ground  that  the  entire  controversy  should 
be  settled  in  a  single  suit,  and  that  damages 
should  be  allowed  for  the  whole  injury, 
past  and  pi'ospective,  if  such  injury  be  prov- 
en with  reasonable  certainty  to  be  perma- 
nent in  its  character.  Id.  §  94.  We  think, 
upon  the  whole,  that  the  more  correct  vieAV 
is  presented  in  the  former  class  of  cases.  1 
Suth.  Dam.  199-202;  3  Suth.  Dam.  369-399; 
1  Sedg.  Dam.  (Sth  Ed.)  §§  91-94;  Uline  v. 
Railroad  Co.,  101  N.  Y.  98,  4  N.  E.  530; 
Duryea  v.  Mayor,  26  Hun,  120;  Blunt  v.  Mc- 
Cormick,  3  Denio,  283;  Cooke  v.  England, 
92  Am.  Dec.  630,  notes;  Reed  v.  State,  lOS 
N.  Y.  407,  15  N.  E.  735;  Hargreaves  v.  Kim- 
berly,  26  W.  Va.  787;  Ottenot  v.  Railroad 
Co.,  119  N.  Y.  603,  23  N.  E.  169;  Cobb  v. 
Smith,  38  Wis.  21;  Canal  Co.  v.  Wright,  21 
N.  J.  Law,  469;  Wells  v.  Northampton  Co., 
151  Mass.  46,  23  N.  E.  724;  Barrick  v.  Schif- 
ferdecker,  123  N.  Y.  52,  25  N.  E.  365;  Silsby 
Manuf'g  Co.  v.  State,  104  N.  Y.  562,  11  N. 
B.  264;  Aldworth  v.  City  of  Lynn,  153  Mass. 
53,  26  N.  E.  229;  Town  of  Troy  v.  Railroad 
Co.,  23  N.  H.  83;  Cooper  v.  Randall,  59  111. 
317;  Railroad  Co.  v.  Hoag,  90  111.  339.  We 
do  not  wish  to  be  understood,  however,  as 
holding  that  the  rule  laid  dovvu  in  the  sec- 
ond class  of  cases  is  not  applicable  under 
some  circumstances,  as  in  the  case  of  per- 
manent injury  caused  by  lawful  public 
structures,  properly  constructed  and  perma- 
nent in  their  character.  In  Uline  v.  Rail- 
road Co.,  supra,  a  railroad  company  raised 
the  grade  of  the  street  in  front  of  the  plain- 
tiff's lots  so  as  to  pour  the  water  therefrom 
down  over  the  sidewalk  into  the  basement 
of  her  houses,  flooding  the  same  with  water, 
and  rendering  them  damp,  unhealthy,  etc., 
and  injuring  the  rental  value,  etc.     In  dis- 


cussing the  question  of  the  damages  to 
which  the  plaintiff  was  entitled  the  court 
say:  "The  question,  however,  still  remains, 
what  damages?  All  her  damages  upon  the 
assumption  that  the  nuisance  was  to  be  per- 
manent, or  only  such  damages  as  she  sus- 
tained up  to  the  commencement  of  the  ac- 
tion? *  *  *  There  has  never  been  in  this 
state  before  this  case  the  least  doubt  ex- 
pressed in  any  judicial  decision  *  *  * 
that  the  plaintiff,  in  such  a  case,  is  entitled 
to  recover  only  up  to  the  commencement  of 
the  action.  That  ^ucli  is  the  rule  is  as  well 
settled  here  as  any  rule  of  law  can  be  by  re- 
peated and  uniform  decisions  of  all  the 
courts,  and  it  is  the  prevailing  docti'ine  else- 
where." Then  follows  an  exhaustive  re- 
view of  the  authorities,  which  sustain  the 
conclusion  of  the  court  as  above  announced. 
In  Duryea  v.  Mayor,  supra,  the  action  was 
brought  to  recover  damages  occasioned  by 
the  wrongful  acts  of  one  who  had  dischar- 
ged water  and  sewerage  upon  the  land  of 
another,  and  it  was  held  that  no  recovery 
could  be  had  for  damages  occasioned  by  the 
discharge  of  the  water  and  sewage  upon  the 
land  after  the  commencement  of  the  action. 
In  Blunt  V.  McCormick,  supra,  the  action 
was  brought  by  a  tenant  to  recover  dam- 
ages against  his  landlord  because  of  the  lat- 
ter's  erection  of  buildings  adjoining  the  de- 
mised premises,  which  shut  out  the  light 
from  the  tenant's  windows  and  doors;  and 
it  was  held  that  damages  could  only  be  re- 
covered for  the  time  which  had  elapsed 
when  the  suit  was  commenced,  and  not  for 
the  whole  term.  In  Hargreaves  v,  Kimber- 
ly,  supra,  the  action  was  case  to  recover 
damages  for  causing  surface  water  to  flow 
on  plaintiff's  lot,  and  for  injury  to  his  trees 
by  the  use  of  coke  ovens  near  said  lot,  and 
for  injury  thereby  to  his  health  and  com- 
fort; and  it  ■uas  held  to  be  error  to  permit 
a  witness  to  answer  the  following  question: 
"What  will  be  the  future  damage  to  the 
property  from  the  acts  of  the  defendant  ?"^ 
the  court  saying:  "In  all  those  cases  where 
the  cause  of  the  injury  is  in  its  nature  per- 
manent, and  a  recovery  for  such  injury 
would  confer  a  license  on  the  defendant  to 
continue  the  cause,  the  entire  damage  may 
be  recovered  in  a  single  action;  but  where 
the  cause  of  the  injuiT  is  in  the  nature  of  a 
nuisance,  and  not  permanent  in  its  charac- 
ter, but  of  such  a  character  that  it  may  be 
supposed  that  the  defendant  would  remove 
it  rather  than  suffer  at  once  the  entire  dam- 
age which  it  may  inflict  if  permanent,  then 
the  entire  damage  cannot  be  recovered  in  a 
single  action;  but  actions  may  be  maintain- 
ed from  time  to  time  as  long  as  the  cause 
of  the  injury  continues."  In  Wells  v. 
Northampton  Co.,  supra,  where  a  railroad 
company  maintained  a  culvert  under  its  em- 
bankment, which  injured  land  by  dischar- 
ging water  on  it,  it  was  held  that  the  case 
fell  within  the  ordinary  rule  applicable  to 
continuing   nuisances    and    continuing    tres- 


94 


PKESENT  AND  PliOSPECTIVE  DAMAGES. 


passes.  Reference  was  made  to  Uline  v. 
Railroad  Co.,  supra,  and  the  following  lan- 
guage was  used  by  the  court:  "If  the  de- 
fendant's act  was  wrongful  at  the  outset, 
as  the  jury  have  found,  we  see  no  way  in 
which  the  continuance  of  its  structure  in  its 
wrongful  form  could  become  rightful  as 
against  the  plaintiff,  unless  by  release  or 
grant  by  prescription  or  by  the  payment  of 
damages.  If  originally  wrongful,  it  has  not 
become  rightful  merely  by  being  built  in  an 
enduring  manner."  In  Aldworth  v.  City  of 
Lynn,  supra,  where  the  action  was  for  dam- 
ages sustained  by  a  landowner  through  the 
improper  erection  and  maintenance  of  a 
dam  and  reservoir  by  the  city  of  Lynn  on 
adjoining  land,  the  supreme  court  of  Massa- 
chusetts say:  "The  plaintiff  excepted  to  the 
ruling  that  she  was  entitled  to  recover  dam- 
ages only  to  the  date  of  her  writ,  and  con- 
tended that  the  dam  and  pond  were  perma- 
nent, and  that  she  was  entitled  to  damages 
for  a  permanent  injury  to  her  property. 
An  erection  unlawfully  maintained  on  one's 
own  land,  to  the  detriment  of  the  land  of  a 
neiglibor,  is  a  continuing  nuisance,  for  the 
maintenance  of  which  an  action  may  be 
brought  at  any  time,  and  damages  recovered 
up  to  the  time  of  bringing  the  suit.  *  *  * 
That  it  is  of  a  permanent  character,  or  that 
it  has  been  continued  for  any  length  of  time 
less  than  what  is  necessary  to  acquire  a 
prescriptive  right,  does  not  make  it  lawful, 
nor  deprive  the  adjacent  landowner  of  his 
right  to  recover  damages.  Nor  can  the  ad- 
jacent landowner,  in  such  a  case,  who  sues 
for  damage  to  his  property,  compel  the  de- 
fendant to  pay  damages  for  the  future. 
The  defendant  may  prefer  to  change  his  use 
of  his  property  so  far  as  to  make  his  con- 
duct lawful.  In  the  present  case  we  cannot 
say  that  the  defendant  may  not  repair  or  re- 
construct its  dam  and  reservoir  in  such  a 
way  as  to  prevent  percolation  with  much 
less  expenditure  than  would  be  required  to 
pay  damages  for  a  permanent  injury  to  the 
plaintiff's  land." 

In  the  case  at  bar  the  defendant  did  not 
erect  the  house  upon  plaintiff's  land,  but  up- 
on its  own  land.  It  does  not  appear  that 
such  change  might  not  be  made  in  the  roof, 
or  in  the  manner  of  discharging  the  water 
from  the  roof,  as  to  avoid  the  injury  com- 
plained of.  The  first  count  of  the  declara- 
tion, by  its  express  terms,  limits  the  recov- 
ery for  damages  arising  from  the  negligent 
and  improper  construction  of  defendant's 
building  to  such  injuries  as  were  inflicted 
"before  the  commencement  of  the  suit." 
The  second  count  was  framed  in  such  a 
way  as  to  authorize  a  recovery  of  damages 
for  the  flow  of  water  upon  plaintiff's  prem- 
ises from  some  other  cause  than  the  wrong- 
ful construction  of  defendant's  building; 
and  accordingly  plaintiff's  evidence  tends  to 
show  that  the  eave  trough,  designed  to  car- 
ry off  the  water  from  the  roof,  was  so 
placed  as  to  fail  of  the  i)urpose  for  which  it 


was   intended.     It  cannot  be  said  that  the 
eave  trough  was  a  structure  of  such  a  per- 
manent character  that  it  might  not  be  chan- 
ged, nor  can  it  be  said  that  the  defendant 
would  not  remove  the  cause  of  the  injury 
rather  than  submit  to  a  recovery  of  entire 
damages  for  a  permanent  injury,  or  suffer 
repeated  recoveries  during  the  continuance 
of  the  injury.     The  facts  in  the  record  tend 
to  show  a  continuing  nuisance,  as  the  same 
is  defined  in  Aldworth  v.  City  of  Lynn,  su- 
pra.    Tliere  is  a  legal  obligation  to  remove 
a  nuisance;    and  the  "law  will  not  presume 
the  continuance  of  the  wrong,   nor  allow  a 
license  to  continue  a  wrong,  or  a  transfer  of 
title,   to  result  from  the   recovery   of  dam- 
ages for  prospective  misconduct."     1   Suth. 
Dam.  199,  and  notes.    The  question  now  un- 
der consideration  has  been  before  this  court 
in    Cooper   v.    Randall,    supra.     The   action 
was    for    damages    to    plaintiff's    premises, 
caused    by    constructing    and    operating    a 
flouring   mill   on  a   lot  near  said  premises, 
whereby  chaff,  dust,  dirt,  etc.,  were  thrown 
from  the  mill  into  plaintiff's  house.     It  was 
there  held  that  the  trial  court  committed  no 
error  in  refusing  to  permit  the  plaintiff  to 
prove  that  the  dust  thrown  upon  his  prem- 
ises  by   the  mill   after  the  suit   was   com- 
menced had  seriously  impaired  the  value  of 
the  property,  and  prevented  the  renting  of 
the  house;    and  we  there  said:    "When  sub- 
sequent   damages   are    produced    by    subse- 
quent  acts,    then   the    damages    should    be 
strictly   confined   to  those  sustained   before 
suit  brought."     It  is  true  that  the  operation 
of  the  mill,  causing  the  dust  to  fly,  was  the 
act  of  the  defendant;    but  it  cannot  be  said 
that  it  was  not  the  continuing  act   of  the 
present  appellant  to  allow  the  roof  or  the 
eave  trough  to  remain  in  such  a  condition 
as    to    send    the    water    against    appellee's 
house  upon  the  occurrence  of  a  rain  storm. 
Nor  is  appellant's  house  or  eave  trough  any 
more  permanent  than  Avas  the  mill  in  the 
Cooper  Case.     In  Railroad  Co.  v.  Hoag,  su- 
pra,   a    railroad    company    had    turned    its 
waste   water  from   a  tank  upon  the  prem- 
ises  of   the  plaintiff,    where   it   spread   and 
froze,  and  a  recovery  was  allowed  for  dam- 
ages  suffered    after    the  commencement   of 
the  suit;   but  it  there  appeared  that  the  ice, 
which  caused  the  damage,  was  upon  plain- 
tiff's premises   before  the  beginning  of  the 
suit,  and  the  damage  caused  resulted  from 
the  melting  of  the   ice  after  the  suit  was 
brought.     It   was    there   said:    "The    injury 
sustained    by    appellee    between    the    com- 
mencement of  the  suit  and  the  trial  was  not 
from  any   wrongful  act  done  by  appellant 
during   that   time,   but   followed   from  acts 
done     before    the    suit    was    commenced." 
Here,  the  water,   which  caused  the  injury, 
was  not  upon  plaintiff's  premises,  either  in 
a  congealed  or  liquid  state,  before  the  be- 
ginning of  the  suit,  but  flowed  thereon  as 
tlie   result   of   rain    storms    which    occurred 
after  the  suit  was  commenced.     We  think 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


95 


the  correct  rule  upon  this  subject  is  stated 
as  follows:  "If  a  private  structure  or  other 
work  on  land  is  the  cause  of  a  nuisance  or 
other  tort  to  the  plaintiff,  the  law  cannot  re- 
gard it  as  permanent,  no  matter  with  what 
intention  it  was  built;  and  daaiagos  can 
therefore  be  recovered  only  to  the  date  of 
the  action."  1  Sedg.  Dam.  (Sth  Ed.)  '§  93. 
It  follows  from  the  foregoing  observations 
that  it  was  error  to  allow  the  plaintiff  to  in- 


troduce proof  of  damage  to  her  property 
caused  by  rain  storms  occurring  after  the 
commencement  of  her  suit,  and  that  the  in- 
struction asked  by  the  defendant  upon  that 
subject,  as  the  same  is  above  set  forth, 
should  have  been  given.  The  judgments  of 
the  appellate  and  circuit  courts  are  revers- 
ed, and  the  cause  is  remanded  to  the  circuit 
court. 
Judgment  reversed. 


96 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


ULINE  V.  NEW  YORK  CENT.  &  H.  R.  R. 
CO. 

(4  N.  E.  536,  101  N.  Y.  98.) 
Court  of  Appeals  of  New  York.    Jan.  19,  1886. 
Matthew  Hale,  for  appellant.     A.  J.  Park- 
er, for  respoudent. 

EARL,  J.  Colonie  street  runs  at  right 
angles  with  and  crosses  Broadway,  in  the 
city  of  Albany,  and  the  defendant's  railroad 
crosses  the  two  streets  diagonally  at  the 
place  of  their  intersection,  and  had  crossed 
there  for  at  least  40  years  before  the  trial 
of  this  action.  The  plaintiff  owned  three 
houses  and  lots  contiguous  to  each  other,  situ- 
ate on  the  northerly  side  of  Colonie  street, 
and  easterly  of  Broadway  and  of  the  rail- 
road. The  lot  numbers  are  85,  83,  and  81, 
numbered  in  this  order  from  Broadway.  Lots 
85  and  83  extend  only  to  the  northerly  side 
of  Colonie  street,  while  lot  81  extends  to  the 
center  thereof.  When  the  railroad  Avas  orig- 
inally built,  the  two  streets  were  somewhat 
raised.  About  the  year  1874,  two  additional 
tracks  were  laid  upon  the  defendant's  road 
where  it  crossed  the  two  streets,  one  of  which 
was  upon  the  easterly  side  thereof,  and  the 
road-bed  was  raised  at  its  intersection  with 
Broadway  from  two  and  a  half  to  three  feet. 
It  does  not  appear  that  either  of  the  tracks, 
or  any  part  of  the  road-bed,  was  upon  any 
of  plaintiff's  land,  or  that  she  received  any 
damage  whatever  from  them.  But,  to  ac- 
commodate the  grade  of  Colonie  street  to  the 
grade  of  the  railroad,  it  became  necessary 
to  raise  the  street  and  sidewalks  thereof,  and 
the  consequence  was  that  .the  street  and 
sidewalk  in  front  of  plaintiffs  lots  were  ele- 
vated about  one  foot,  and  all  the  damage 
of  which  plaintiff  complains  was  caused  by 
this  elevation.  She  alleged  in  her  complaint 
that  her  lots  extended  to  the  center  of  the 
street;  that  the  defendant  entered  upon  her 
property  (meaning  her  property  in  the  street), 
and  tore  up  the  pavement,  raised  the  street, 
sidewalks,  and  gutters,  and  so  shaped  the 
street  and  gutters  as  to  pour  the  water  there- 
from down  over  the  sidewalk  into  the  base- 
ments of  her  houses,  by  means  of  which  her 
premises  were  made  liable  to  be  flooded  with 
water,  and  had  been  flooded  with  water,  and 
were  rendered  damp,  unhealthy,  and  incon- 
venient of  access,  and  her  property  therein 
had  been  injured,  and  the  rental  value  and 
the  value  thereof  greatly  depreciated. 

Many  exceptions  were  taken  at  the  trial 
on  behalf  of  the  defendant,  which  its  coun- 
sel argued  before  us,  and  relied  upon  for  a 
reversal  of  the  judgment.  But  I  shall  no- 
tice those  only  which  have  reference  to  the 
rule  of  damages  laid  down  by  the  trial  judge. 
Upon  the  trial  it  was  claimed,  on  behalf  of 
the  defendant,  that  the  plaintiff  could  recover 
only  such  damages  as  she  had  sustained  up 
to  the  commencement  of  the  action.  On  the 
contrary,  her  counsel  claimed  that  she  could 
recover   damages   upon   the  theory   that  the 


embankment  placed  in  the  street  in  front 
of  her  lots  was  to  be  permanent,  and  that 
thus  it  was  a  permanent  injury  to  her  lots, 
and  so  the  law  was  ruled  by  the  trial  judge. 
A  witness  for  the  plaintiff:  was  asked  this 
question:  "What,  in  your  judgment,  was 
the  value  of  these  lots  81,  83,  and  85  Colonie 
street  before  the  grade  was  raised?"  This 
was  objected  to  by  defendant's  counsel  as 
immaterial  and  incompetent,  and  the  objec- 
tion was  overruled,  and  the  witness  answered 
that  each  lot  was  worth  $3,000,  and  was 
worth  less  after  the  change.  Then  he  was 
asked  this  question:  "How  much  would  it 
be  worth  since  the  change  in  the  street?" 
This  was  objected  to  by  defendant's  counsel 
on  the  grounds  that  it  was  immaterial  and 
incompetent;  that  a  change  of  market  value 
between  1874  and  that  time  was  no  evidence 
of  damages  in  this  action;  that  the  question 
assumes  that  the  damage  was  permanent; 
that  the  proper  measure  of  damages  was  any 
injury  to  the  rental  value  of  the  premises 
prior  to  the  commencement  of  the  suit  and 
the  cost  of  restoring  the  street  to  its  former 
condition;  and  that  there  was  nothing  in  the 
complaint  or  in  the  evidence  which  rendered 
material  any  evidence  as  to  the  market  value 
of  the  property  either  before  or  after  the 
alleged  wrongful  act.  The  trial  judge  ruled 
that  he  would  allow  the  plaintiff  to  prove 
how  much  the  rental  of  the  property  had 
been  impaired  down  to  the  commencement 
of  the  action,  and  the  actual  injuries  which 
the  property  had  sustained  by  the  flow  of 
the  water  into,  upon,  and  against  it  by  rea- 
son of  the  change  of  the  grade  of  the  street 
by  the  defendant;  and  to  this  ruling  plain- 
tiff's coimsol  excepted.  Subsequently,  upon 
further  argument  on  the  next  day,  the  judge 
reversed  his  ruling,  and,  among  other  things, 
said:  "Yesterday  an  inquiry  was  made  of 
coimsel  as  to  the  act  of  the  defendant  in  con- 
structing the  additional  tracks,  and  in  raising 
the  bed  of  the  road.  I  understood  it  to  be 
conceded  that  the  act  was  a  pm-e  trespass; 
that  the  dumping  of  the  ground  in  the  street 
was  a  trespass;  and  that  the  consh'uction 
of  the  tracks  was  a  trespass,  and  the  run- 
ning of  the  cars  was  a  trespass,— and  I  there- 
fore held  that  no  court  would  be  justified  in 
assuming  that  an  act  of  that  character  would 
be  permanent;  therefore  that  the  permanent 
depreciation  in  value  of  the  property  could 
not  be  the  basis  of  the  damages,  but  only 
the  depreciated  rental  during  the  time  of  the 
continuance  of  the  trespass  up  to  the  time 
of  the  beginning  of  the  suit,  and  the  actual 
injury  which  the  flooding  had  done  to  the 
property.  I  tliink,  if  these  facts  be  conced- 
ed, that  the  plaintiff  can  only  recover  the 
rental  which  she  had  lost,  and  the  actual  in- 
jury to  the  premises  down  to  the  time  of  the 
bringing  of  the  suit."  He  then  called  atten- 
tion to  the  complaint,  and  said  that  it  did 
not  charge  that  the  defendant's  acts  were 
illegal,  or  that  they  were  a  pure  trespass  up- 
on the  street,  and  that  the  pleadings  show- 


1'ki:si:nt  am>  ritosrEcnvE  damaces. 


97 


od  ihat  the  :u-ts  weiv  k-i,'ally  di)UG  by  the 
defendant  under  its  ehavter;  and,  further: 
"If  That  proposition  be  sound,  how  can  the 
court  act  upon  an  assumption  that  here  was 
a  mere  trespass  committed  by  the  railroad 
company  upou  a  street  which  they  had  no 
right  to  do?  My  decision  yesterday  rested 
upon  an  assumption  that,  pvu-ely  and  simply, 
here  Avas  a  trespass  conunitted  upon  tlie 
srreer  Avhich  the  company  had  no  right  to 
commit,  and  which,  because  a  trespass,  the 
court  could  not  assume  would  be  of  a  per- 
manent character.  T'pon  that  supiKisition. 
and  uiion  that  theory,  it  was  held  that  the 
plaintiff  could  not  recover  as  for  a  permanent 
injury  to  the  property,  but  must  be  limited 
in  her  recovery  to  the  damages  which  she 
had  sustained  by  a  loss  of  rental  up  to  the 
time  of  bringing  the  action,  and  to  the  actual 
injury  done  to  the  property." 

Plaintiffs  counsel  stated  that  "they  had 
never  claimed  this  was  a  case  of  mere  tres- 
pass; that,  as  to  two  of  the  lots,  they  did 
not  own  the  soil  in  the  street,  and  it  could 
not  be  a  trespass."  The  trial  judge  then  held 
that,  because  the  acts  of  the  defendant  in  the 
street  were  not  illegal  or  unlawfid,  and  there- 
fore not  a  trespass,  they  might  lie  regarded 
as  of  a  permanent  nature,  and  that  the  plain- 
tiff could  therefore  recover  for  the  perma- 
nent injury  done  to  her  property;  and  he 
overruled  defendant's  objection  to  the  ques- 
tion; and  the  witness  answered  that  each 
lot.  immediately  after  the  change,  was  worth 
about  .1!1,500.  Similar  questions  put'by  plain- 
tiffs counsel  to  other  witnesses  were  object- 
ed to  by  defendaufs  counsel.  The  objec- 
tions were  overruled,  and  the  witnesses  an- 
swered in  substantially  the  same  manner. 
l':videuce  offered  by  the  defendant  to  show 
how  much  it  would  cost  to  restore  the  street 
to  its  former  condition  was,  on  the  objection 
of  the  plaintiff,  excluded. 

At  the  close  of  all  the  evidence  defendant's 
counsel  moved  for  a  nonsuit  upon  the  follow- 
ing grounds:  "(1)  That  no  title  has  been  prov- 
ed in  plaintiff  in  the  property  in  question; 
(2)  there  is  no  proof  of  any  interference  by 
defendant  with  property  in  question;  (3) 
plaintiff  has  failed  to  make  out  a  cause  of 
action;  and  upon  the  further  ground  there 
is  no  proof  of  any  unlawful  or  illegal  inter- 
ference by  defendant  with  the  property  in 
question."  The  trial  judge  said:  "I  agree 
with  you;  there  is  no  proof  of  any  illegal  in- 
terference. That  involves  another  very 
grave  question,— I  concede  that;"  and  he  de- 
nied the  motion,  and  defendant's  counsel  ex- 
cepted. The  judge  charged  the  jury  that  the 
plaintiff  could  recover,  for  the  permanent  in- 
jury to  her  property,  the  diminished  market 
value  thereof.  He  was  re(iuested  by  defend- 
ant's counsel  to  charge  as  follows:  "If  the 
jury  believe  that  the  act  of  the  defendant  in 
raising  the  street  was  not  unlawful,  but  was 
by  the  permission  of  the  city  of  Albany,  then 
the  defendant  is  not.  under  the  proof.  lial)le 
1.0  plaintiff  for  any  injury  done  to  the  plain- 
LAW  DAM.2d  Ed.— 7 


tiff  by  reason  of  such  grade."  The  judgi-  re- 
plied: "I  decline  to  charge  that.  I  adniii 
that  involves  a  very  difficult  problem  of 
law."  I>efendant's  counsel  also  asked  him 
to  charge:  "If  the  jury  believe  such  acts 
were  dune  without  the  permission  of  the  ,city. 
and  were  unlawful,  then  the  measure  of  dam- 
ages Avould  l)e  the  actual  injury  sustained  by 
plaintiff  before  the  commencement  of  this  ac- 
tion, including  the  loss  of  rent  and  the  injury 
to  the  use  and  enjoyiment  of  the  property  be- 
fore tli(>  commencement  of  the  action,  if 
any."  And  the  judge  said:  "I  decline  to 
charge  tliat.  bicause  there  is  no  proof  one 
Avay  or  the  other  upon  the  (luestion.  Wheth- 
er there  was  an  authorized  or  unauthorized 
act,  there  is  no  presumption  in  favor  of  the 
trespass." 

Defendant's  counsel  further  askeil  the 
judge  to  charge  "that  upon  the  evidence  the 
jury  Avill  not  be  justified  in  rendering  a  ver- 
dict for  the  supposed  difference  in  market 
value  in  the  premises  before  and  after  the  act 
in  question,"  and  he  refused  so  to  charge; 
and  to  all  the  refusals  defendant's  counsel 
excepted.  The  judge  then  said:  "For  the 
purpose  of  presenting  that  question  sharply^ 
I  neglected  to  charge,  as  1  shall  dn  now.  tii;it 
the  plaintiff  can  recover  the  difference  in  ih,' 
rental  value  of  the  property,  i)rovided  you 
find  that  the  act  of  the  defendant  has  im- 
paired the  market  value,  and  to  the  extent  it 
has  impaired  it;"  and  to  this  defendant's 
counsel  also  excepted. 

At  the  general  term  the  rule  of  damages 
laid  doAvn  by  the  trial  judge  was  approved, 
for  the  reasons  given  by  him,  to-wit:  That 
the  raising  of  the  street  was  not  illegal  or 
unlawful,  and  was  apparently  permanent. 
Judge  Boardman,  writing  an  opinion  in 
which  Judge  Bockes  concurred,  among  odi- 
er  things,  said:  "The  right  of  the  defendant 
to  occupy  the  street  must  be  presumed  from 
the  length  of  time  it  has  used  it."  "We  can- 
not say  that  plaintiff  had  any  title  to  the 
street,  or  that  the  occupation  of  the  street  by 
the  defendant  was  unlawful."  Judge  Learn- 
ed concurred  in  the  result,  apparently  with 
some  hesitation.  He  said  that,  in  regard  to 
the  question  of  damages,  he  thought  the  mat- 
ter did  not  depend  altogether  "on  the  perma- 
nency of  the  structure";  that  if  A.  trespasses 
on  the  land  of  B.,  and  erects  a  structure, 
however  permanent,  he  supposed  that  in  ac- 
tion for  trespass  damages  could  be  recovered 
only  for  injuries  up  to  the  time  of  the  com- 
mencement of  the  action;  and  that,  if  the 
trespass  were  continued,  another  action  could 
be  brought.  But  he  seemed  to  be  of  opinion 
that,  as  the  railroad  company  could  legally 
acquire  property  needed  for  its  track,  and  a 
right  to  construct  its  road  upon  a  street, 
when  they  have  taken  possession,  and  have 
in  fact  used  a  street  in  a  manner  indicating 
a  permanent  use,  it  is  not  unreasonable  that 
in  an  action  against  them  damages  should 
be  recovered  for  the  whole  injury. 
I  have  thus  carefully  and  fully  stated  these 


y8 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


facts  to  show  the  precise  theory  iipou  which 
tlie  dainagos  were  recovered  at  the  trial  term, 
and  the  judgment  was  affirmed  at  the  gen- 
eral term;  and  that  the  theory  is  fundamen- 
tally and  radically  erroneous,  I  can  have  no 
douln.  Railroads  are  authorized  to  be  built 
by  law;  but,  before  a  proposed  railroad  can 
be  lawfully  built,  its  builders  must  obtain  the 
right  of  way.  They  cannot  take  private  prop- 
erty for  that  purpose  without  first  making 
compensation  therefor,  and  if  they  do  they 
b(  come  trespassers.  If  the  railroad  be  built 
upon  or  over  a  highway,  the  public  right  or 
license  must  be  obtained  not  only,  but,  so  far 
as  individuals  own  private  rights  or  interests 
in  the  highway,  or  the  soil  thereof,  they  must 
also  be  lawfully  acquired;  and  it  is  equally 
true,  whether  the  railroad  be  built  upon  a 
highway,  or  be  built  elsewhere  without  ac- 
quiring the  private  right  or  property,  that 
the  builders  are  liable  for  all  the  damages 
suffered  by  the  owners  of  such  rights  and 
property.  As  to  them  and  their  rights,  the 
railroad  is  unlawful,— a  continuing  nuisance 
which  they  can  cause  to  be  abated,— and  so 
it  has  been  settled  by  repeated  decisions. 
Williams  v.  Railroad  Co.,  16  N.  Y.  97;  Ma- 
hon  V.  Railroad  Co.,  24  N.  Y.  658;  Plate  v. 
Railroad  Co.,  37  N.  Y.  472;  Henderson  v. 
Railroad  Co.,  78  N.  Y.  42:3;  Story  v.  Railroad 
Co.,  90  N.  Y.  122;  Mahady  v.  Railroad  Co., 
91  N.  Y.  148.  But  wherever  a  railroad  is 
lawfully  built,  with  proper  care  and  skill, 
there  it  is  not  a  nuisance.  What  the  law 
sanctions  and  authorizes  is  not  a  nuisance, 
although  it  may  cause  damages  to  individual 
rights  and  private  property.  If  a  railroad 
be  built  upon  a  highway  after  acquiring  the 
public  right,  and  the  private  property,  if 
any,  in  the  street,  or  the  soil  thereof,  then 
the  owners  thereof  are  not  responsible  for 
any  damages  necessarily  resulting  from  the 
construction  or  operation  of  the  railroad  to 
private  property  adjacent  or  near  to  the  road; 
and,  so,  too,  the  laAV  has  been  settled  in  this 
state  by  many  decisions.  Radclilf's  Ex'rs  v. 
Mayor,  etc.,  4  N.  Y.  I9.~>;  Davis  v.  Mayor,  etc., 
14  N.  Y.  506;  Bellinger  v.  Railroad  Co.,  23 
N.  Y.  42;  Kellinger  v.  Railroad  Co.,  50  N.  Y. 
206.  The  case  of  P'letcher  v.  Railroad  Co., 
25  Wend.  462,  so  far  as  it  holds  a  contrary 
doctrine,  has  been  overruled  by  the  cases 
just  cited. 

Here  there  was  no  complaint  tliat  the  work 
done  by  the  defendant  in  the  street  was  not 
done  with  sufficient  care  and  skill,  and  it  was 
assumed  at  the  trial  that  it  was  legally  and 
lawfully  done,  and  that  the  defendant  was 
not  a  trespasser  in  the  street.  That  assump- 
tion implies  that  the  defendant  had  the  pub- 
lic license  to  do  what  it  did  not  only,  but 
also  that  it  invaded  no  property  rights  of  the 
plaintiff  in  the  street.  The  assumption  was 
warranted  by  the  facts.  This  railroad  com- 
pany in  a  populous  city  had  been  there  a 
large  number  of  years,  and  it  cannot  be  as- 
sumed that  it  was  there  without  right,  and 
tliere  is  no  allegation  in  the  complaint  that  it 


was.  There  was  no  proof  that  the  railroad 
embank nient  was  made  any  wider  on  the 
easterly  side,  towards  the  plaintiff's  lots,  and 
hence  it  may  be  assumed  that  the  additional 
track  was  laid  upon  its  embankment  and  un- 
der rights  early  acquired  and  long  possessed 
by  it  at  that  place.  As  before  stated,  there 
is  no  proof  that  either  the  railroad  tracks, 
or  any  part  of  the  railroad  embaid^ment,  was 
plac(d  upon  the  soil  of  the  plaintiff  in  the 
street,  and  in  fact  neither  was.  Even  if  the 
plaintiff's  lots  were  bounded  southerly  by 
the  center  of  Colonie  street,  all  the  defend- 
ant did  was  to  raise  the  street  and  sidewalk 
in  front  of  her  lots  so  as  to  conform  the  grade 
of  the  street  to  the  grade  of  the  railroad  and 
of  Broadway,  over  which  it  passed.  This, 
we  must  assume,  it  had  from  the  city  the 
right  to  do,  and  .so  much  it  was  bound  by  law 
to  do  under  the  general  railroad  act  (Laws 
1850,  c.  140,  §  28,  subd.  5),  by  which  it  was 
bound  to  restore  the  street  to  "such  state  as 
not  imnecessarily  to  have  impaired  its  use- 
fulness." Here  there  was  no  allegation  nor 
proof  that  the  street,  as  a  street  for  travel, 
was  in  any  way  injured,  and  much  le-ss  that 
its  tisefuluess  was  unnecessarily  impaired. 
It  was  not,  in  front  of  plaintiff's  premises,  by 
the  act  of  the  defendant,  devoted  to  anything 
but  street  purposes;  and,  as  the  city  could 
have  raised  the  grade  of  the  street  without 
liability  to  abutting  owners,  so  it  could  au- 
thorize the  defendant  to  do  so  without  such 
liability. 

We  have  a  case,  then,  where  the  defendant 
did  acts  in  the  street  entirely  lawful,  and 
where  it  was  held  lial)le  for  the  consequen- 
tial damages  to  the  plaintiffs  adjacent  prop- 
erty caused  by  the  careful  use  of  its  lawful 
authority  and  the  proper  exercise  of  its  legal 
rights.  To  uphold  this  recovery  upon  such 
a  theory  wotild  subvert  a  very  important 
rule  of  law  a1x>ut  which  there  has  been  no 
substantial  question  in  this  state  for  at  least 
30  years.  The  rule  was  recognized  by  all 
the  judges  who  wrote  opinions  in  Story  v. 
Railroad  Co..  and  by  the  judge  who  wrote  in 
Mahady  v.  Railroad  Co.,  the  latest  cases  in 
which  the  rule  has  been  under  consideration 
here.  Even  if  the  asstimption  that  the  acts 
done  by  the  defendant  in  Colonie  street  w^ere 
lawful  was  not  wan-anted  by  the  facts,  yet, 
as  the  lawftilness  of  the-  acts  was  assumed 
by  the  court,  and  substantially  conceded  by 
plaintiff's  counsel  at  the  trial,  the  assumption 
shottld  prevail  here,  because  but  for  it  the 
defendant  might  have  proved  that  its  acts 
were  lawful. 

But  the  learned  counsel  for  the  plaintiff, 
as  we  understand  his  brief,  does  not  attempt 
to  sustain  this  judgment  upon  the  theory 
adopted  by  the  trial  judge.  He  claims  that 
the  interference  by  the  defendant  with  the 
street  was  unlawful  and  a  nuisance,  and 
that,  therefore,  the  plaintiff  was  entitled  to 
recover  damages  caused  thereby;  and  if  he 
is  right  in  his  contention  that  this  embank- 
ment placed  in   the  street  by  the  defendant 


PIIESENT  AND  I'ltOSl'KCTlVE  DAMAGES. 


\)\} 


\\;i<.  un!:i\vful.  ami  tlifroforc  a  nuit^am-t'.  tlicii 
the  plaintiff  was  entitUMl  to  recover  damages. 
The  qnestion.  however,  still  reiiiaius.  what 
(lamajiesV  All  her  dainaf-es,  upon  the  as- 
sumption that  the  nuisance  was  to  be  perma- 
nent? or  only  such  damages  as  she  sustained 
up  to  the  commencement  of  the  action?  We 
have  here  for  consideration  an  iimportant 
principle  of  law  which  has  to  be  fremieutly 
applied,  and  which  ouglit  to  be  W(»ll  known 
and  thoroughly  settled.  There  never  has  been 
in  this  state,  before  this  case,  the  least  doubt 
expressed  in  any  judicial  decision,  so  far  as 
I  can  discover,  that  the  plaintift"  in  such  a 
case  is  entitled  to  recover  damages  only  up  to 
the  commencement  of  the  action.  That  such 
is  the  rule  is  as  well  settled  here  as  any  rule 
of  law  can  be,  by  repeated  and  uniform  de- 
cisions of  all  the  courts;  and  it  is  the  pre- 
vailing doctrine  elsewhere.  In  Hambleton  v. 
Yeere,  2  Saund.  170,  the  learned  annotator  in 
his  note  says:  "So,  in  trespass  and  in  tort, 
new  actions  may  be  brought  as  often  as  new 
injuries  and  Avrongs  are  repeated,  and  there- 
fore damages  shall  be  assessed  only  up  to 
the  time  of  the  Avrong  complained  of." 

In  Rosewell  v.  Prior,  2  Salk.  400,  the  plain- 
tiff  being    seized    of    an    ancient    house    and 
lights,  defendant  erected  a  building  whereby 
l>laiutiffs  lights  were  estopped.     There  was  a 
former  recovery  for  the  erection,  and  the  sec- 
ond  action  was  for  the  continuance  of   the 
erection;    and   it  was   held   that   the   former 
recovery  was  not  a  bar.     In  Bowyer  v.  Cook. 
4  Man.  G.  &  S.  23G.  there  had  been  an  action 
of  trespass  for  placing  stumps  and  stakes  on 
plaintiff's  land,  and  the  defendant  paid  into 
eourt   in   that  action  40   shillings,   which   the 
plaintiff  took  in  satisfaction  of  that  trespass. 
The  plaintiff  afterwards  gave  the  defendant 
notice  that  unless  he  removed  the  stumps  and 
stakes    a    further   action    would    be    brought 
against  him;    and  in  the  second  action  it  was 
held  that  the  leaving  the  stumps  and  stakes 
on  the  land  was  a  new  trespass,  and  that  the 
plaintiff  was  entitled  to  recover.     In  Holmes 
V.  Wilson.  10  Adol.  &  E.  50;^.  the  action  was 
trespass  against  a  turnpike  company  for  con- 
tinuing buttresses  on  plaintiff's  land  to  sup- 
port its  road.     Plaintiff  had  recovered  com- 
pensation for  the  erection  of  the   buttresses 
in  a  former  action,  and  the  money  had  been 
paid  into  court,  and  received  by  him;    and  it 
Avas  held  that  after  notice  to  defendant  to  re- 
move the  buttresses,  and  a  refusal  to  do  so, 
plaintiff  might  bring  another  action  for  tres- 
pass  against   the   company   for   keeping   and 
continuing  the  ))Uttrcsses  on  the  land,  and  that 
the  former  recovery  Avas  not  a  l)ar  to  sach 
an  action.     In  that  case  it  was  argued  for 
the  defendant  that  ihe  damages  given  in  the 
tirst  action  Avere  to  be  regarded  as  a  full  com- 
pensation for  all  injuries  occasioned   by  the 
buttresses,  and  Avere  to  be  considered  as  the 
full  estimated  A-alue  of  the  land  permanently 
occupied  by  the  buttresses;    that  the  damages 
AA-ere  in  respect  of  prospective  as  well  as  past 
injury,  and  that  the  judgment  operated  as  a 


purchase  of  the  land.  I'altersoii,  J.,  said, 
in  reply  to  the  argiunent:  "How  can  you  con- 
v(>rt  a  recovery  and  payment  of  damages  for 
the  trespass  into  a  purchase?  A  recovery  of 
damages  for  a  nuisance  to  land  Avill  not  pre- 
A'ent  another  action  for  continuing  it."  And 
it  was  argued  by  learned  coiuisel  for  the 
plaintiff,  in  reply  to  the  argument  that  the 
form(>r  judgment  operated  as  a  purchase  of 
the  land:  "As  to  the  supposed  effect  of  the 
judgment  in  changing  the  property  of  the 
land,  the  consecpience  of  that  doctrine  Avould 
be  that  a  person  Avho  Avauts  his  neighl)or's 
land  might  alAvays  buy  it  against  his  will, 
paying  only  such  purchase  money  as  a  jury 
might  assess  for  damages  up  to  the  time  of 
the  action.  If  the  property  was  changed, 
when  did  it  pass?  Suppose  the  plaintiff  had 
brought  ejectment  for  the  part  occupied  l)y 
defendant's  buttresses,  AN'ould  the  recovery  of 
damages  in  trespass  be  a  defense?  There  is 
no  case  to  show  that  Avhen  land  is  vested  in 
a  party  and  fresh  injuries  are  done  upon  it, 
fresh  actions  will  not  lie."  See,  also,  Thomp- 
son V.  Gil)son,  7  Mees.  &  W.  4.5():  Mitchell 
A'.  Colliery  Co.,  14  Q.  B.  Div.  12-3:  Whitehonso 
V.  PVlloAVS,  10  C.  B.  (N.  S.)  7Go. 

I  tind  no  case  in  England  now  regarded  as 
authority  in  conflict  Avith  these  cases.  The 
case  of  Beckett  v.  Railroad  Co.,  L.  R.  3  C.  P. 
81.  does  not  lay  doAvn  a  different  rule.  That 
case  arose  imder  the  railroad  clauses  consoli- 
dation act  and  the  land  clauses  consolidation 
act,  which  reqitire  full  compensation  to  be 
made  by  railroad  companies,  not  only  for 
lands  taken,  but  also  for  damages  to  land  in- 
juriously affected.  Under  those  acts  the 
plaintiff  recovered,  not  only  the  value  of  his 
lands  taken,  but  for  permanent  injury  to  his 
other  lands.  The  case  of  Lamb  v.  Walker,  3 
Q.  B.  Div.  389,  was  overruled  in  Mitchell  v. 
Colliery  Co.,  supra,  and  is  no  longer  authority 
in  England. 

The  same  rule  of  damages  which  I  am  try- 
ing to  enforce  proA'ails  generally,  and  with 
very  rare  exceptions,  in  the  other  states  of 
this  Union.  In  Esty  v.  Baker,  48  Me.  495, 
Appleton,  J.,  said:  "The  mere  continuance 
of  a  building  upon  another's  land,  even  after 
the  recovery  of  damages  for  its  erect  ion.  is 
a  trespass  for  Avhich  an  action  Avill  lie."  In 
RusspII  v.  BroAvn,  03  Me.  203,  the  action  was 
trespass  quare  clausum,  for  continuing  ujion 
the  plaintiff's  land  the  Avail  of  a  building 
9  inches  Avide.  and  10(j  feet  long.  The  de- 
fendant pleaded  in  bar  a  former  judgment  re- 
covered for  building  the  Avail,  and  satisfaction, 
and  it  was  held  that  the  mere  continuance 
of  a  structui-e  tortiously  erected  i',pon  an- 
other's laud,  even  after  recovery  and  satis- 
faction of  a  judgment  for  its  Avrongful  erec- 
tion, is  a  trespass  for  which  another  action  of 
trespass  quare  clausum  Avill  lie.  and  that  a 
recovery  Avith  satisfaction  for  erecting  a  struc- 
tiu-e  does  not  operate  as  a  purchase  of  the 
right  to  continue  such  erection.  In  Canal 
Corp.  V.  Hitchings,  0.5  Me.  140.  the  action 
was  trespass  for  filling  about  2UU  yards   of 


100 


PKESEXT  AND  PROSPECTIVE  DAMAGES. 


oanal,   ami    the   justice   iustnietoa    the   jury, 
inter  alia:     '■^Yllatevel•  dimiuution  there  is  in 
the  value  of  the  property  by  roasmi  of  the 
trespass  is  au  element  of  danmire.'"     The  de- 
fendant  excepted   to   this  instruction,   and  it 
was  held  erroneous;    that  the  recovery  should 
have  been  limited  to  such  damages  as  were 
sustained  down  to  the  commencement  of  the 
action.     Wilton,  J.,  Avriting  the  opinion,  said: 
"It  is   now   perfectly   well   settled   that   one 
Avho  creates  a  nuisance  upon  another's  land 
is  under  a  legal  obligation  to  remove  it,  and 
successive  actions  may  be  maintained  until 
he  is  compelled  to  do  so."     "The  doctrine  of 
all  the  cases  is  that  a  recovery  of  damages 
for  the  erection  of  a  building  or  other  struc- 
ture upon  another's  land  does  not  operate  as 
a  purchase  of  the  right  to  have  it  remain 
there;    and   that   successive  actions   may   be 
brought  for  its  continuance  until  tlie  wrong- 
doer is  coniQelled  to  remove  it."     "As  a  nec- 
essary   result   of    this   doctrine,    it   has    been 
lield.  and  we  think  correctly,  that  in  the  first 
action  brought  for  such  a  trespass  the  plain- 
tiff can  recover  such  damages  only  as  he  had 
sustained  at  the  time  when  the  suit  was  com-  | 
menced,  because,  for  any  damage  afterwards 
sustained,  a  new  action  may  be  maintained; 
and  the  law  will  not  allow  two  recoveries  for 
the  same  injury."    "The  injury  complained  of 
was  the  filling  up  of  the  canal.     The  defend- 
ant, acting  under  authority  from  the  city  of 
Portland,    had    extended    Connnercial    street 
over   and  across   the   canal,   by   means   of  a 
solid  embankment.     No  opening  was  left  for 
the  passage  of  either  boats  or  water.     As- 
suming that  this  embankment  Avas  unlawfully 
1. laced  there;    that  the  canal  shoidd  have  been 
bridged,  not  filled  up,— and  we  have  a  nui- 
sance   upon    the    plaintifC's    land,— something 
placed  there  which  can,  and  in  contemplation 
of  law  ouglit  to  be,  removed.     For  such  an 
injury  successive  actions  may  be  maintained 
until  a  removal  is  compelled.     The  damages 
must  thereftire  be  limited  to  such  as  the  plain- 
tiff  has   sustained   at  the  date  of   the   writ. 
The  rule  given  to  the  jury,— namely,  that  tlie 
measure  of  damages  Avas  the  dimiuution  of 
the  value  of  the  property,— was  inappropriate, 
and  must  have  led  to  an  erroneous  result." 

In  Bare  v.  Hoffman,  79  Pa.  St.  71,  the  plain- 
tiff liad  a  dam  from  Avhich  he  conducted 
water  to  his  tannery,  and  the  defendant  made 
a  dam  below,  into  wliich  the  surplus  water 
over  plaintiffs  dam  flowed,  and  from  his  dam 
tlie  defendant,  by  a  pipe,  conducted  the  water 
to  his  tannery,  l)y  which  the  plaintiff  lost  tlie 
use  of  the  water  required  to  carry  the  offal 
from  his  tannery,  and  it  was  held  that  evi- 
dence of  permanent  injury  to  the  market 
value  of  plaintiff's  tannery  was  inadmissilile; 
that  the  injury  Avas  not  of  such  a  c-haracter 
as  to  assume  that  it  Avould  be  permanent,  and 
to  assess  damages  accordingly;  and  that,  as 
a  general  riile,  successive  actions  may  be 
brought  so  long  as  the  obstruction  is  con- 
tinued. Mercur,  .T.,  writing  tlie  npinion.  said: 
•'The  general  rule  is  that  siucessive  actijns 


may  be  brought  as  long  as  the  obstruction  is 
maintained.  A  recovery  in  the  first  action  es- 
tablislies  the  plaintiff's  right.  Subsequent  ac- 
tions are  to  recover  damages  for  a  continu- 
ance of  the  obstruction." 

In  Thompson  v.  Canal  Co.,  17  N.  J.  Law, 
480,  it  was  held  that  the  title  to  lands  does 
not  pass,   by  a  verdict  for  the  plaintilf,   in 
an  action  of  trespass;  that  it  remains  in  the 
plaintiff,  and  therefore  a  verdict  for  dama- 
ges to  the  full  value  of  the  land  is  manifest- 
ly wrong.     In   Thayer  v.   Brooks,   17   Ohio, 
480,  the  action  Avas  case  for  nuisance  in  di- 
verting water  from  the  mill  of  the  plaintiff. 
The  injury  complained  of  in  the  declaration 
Avas  that  the  mill  was  rendered  less  useful 
by  reason  of  a  diversion  of  a  portion  of  the 
water  from  the  stream  by  means  of  a  canal 
cut  by  defendant.     The  court  instructed  the 
jury  tliat  the  OAVuer  of  the  mill  Avas  entitled 
to  recover  such  damages  as  tlie  jury  believed 
he  had  sustained  by  tlie  mill-site  having  been 
diminished  in  value  in  consequence  of  the  di- 
version of  the  water.     Birchanl,  C.  J.,  Avrit- 
ing  the  opinion,  said:      "This  Avas  going'too 
far.      Suppose    tlu'    party    liable   at   all,    he 
Avas  only  liable,  under  any  form  of  declara- 
tion,   for    the    damages    actually    sustained 
prior    to    the    commencement    of    the    suit." 
In  Railroad  Co.  v.  Kernodle.  54  Ind.  314,  it 
was    held   that   Avliere    a   railroad    company 
in  the  construction  of  its  road-bed,  Avithout 
taking  the  steps  prescrilKHl  by  hiAV  to  con- 
demn   its   right   of   way,   unlawfully    enters 
upon  and  takes  possession  of  land,  and  suit 
is  brought  by  the  owner  thereof  to  recover 
damages  for  such  trespass,  the  damages  as- 
sessed should  include  compensation  for  the 
injury  inflicted,  and  such  punitive  damages 
as  are  authorized  by  hiAV,  but  not  the  value 
of  the  land   s.)  used   or   approitriated;    that 
in  such  an  action  no  judgment   tliat  the  court 
trying   such    cause   is  authorized   to   render, 
will    give    the   raihoad    company    a   title    to 
the    land    appropriated.     In    Hai-rington    v. 
Railroad  Co.,  17  Minn.  21^  (Gil.  18S),   AVhere 
tlie  defendant  had  l)uilt  its  road  in  the  street 
adjoining  plaintiff's  land,   it  Avas   held  that 
it  Av.-is  a  continuing  nuisance  for  which  suc- 
cessive  actions   could   be   brouglit;     and    an 
e(iuital)le  action  for  an  injunction   was  sus- 
tained for  the  reason  that  it  Avould  obviate 
tlie  necessity  of  a  multiplicity  of  suits.     In 
Adams   a^    Railroad    Co..    is    Minn   200   (Gil. 
•S.Hi).    the    plaintiff    was    tlie    owner    and    in 
possession   of   a    lot  situated   on   the  side   ()f 
the  street,  wliicli  also  exteiidi'd  to  the  center 
of  the  street,  subject  only  to  a  public  ease- 
ment to  use  the  same   for   strtH't  purposes. 
The  defendant,  a  railroad  conqiany,  Avithout 
first  acquiring  the  right  so  to  do.  constructed 
its  road  along  the  street  in  front  of  plain- 
tiff's  premises;     and    it   Avas    held   that    the 
defendant,   in   thus  appropriating  the  street 
to  its  OAvn  use.  Avas  a  tresjiasser.  and  that 
its    acts    constituted    a   private    nuisance    a-> 
against  the  plaintiff,  entitling  liim  to  main- 
I  t;iin  an   action   therefor,   and   that  the  dam- 


riti:si:M"  am»  ruosi'iJcmE  damaijes. 


101 


n.ui-s  would  be  for  the  unluwl'ul  wUhliuUlin,;;- 
of  tlio  i)OSS(>ssion  of  the  premises  un  to  the 
.•(niiiui'iu-euient  of  the  action.  Kipley.  C. 
.!..  writing  the  opinion,  said:  ""As  tliere  is 
11(1  in-esuniption  of  law  that  such  illejial 
runiiiii!;-  of  trains  and  other  trespasses  will 
he  continned  in  the  future,— that  the  unlaw- 
ful act  of  to-day  Avill  be  repeated  on  the 
morrow,— it  is,  of  course,  obvious  that  while 
the  jury,  lu  the  present  case,  could  assess 
past  damages,  they  could  uot  assess  the 
]iernianent  damages  to  accrue  from  an  as- 
sumed continued  use  thereafter  of  the  land 
by  the  defendant  in  the  same  way." 

In  Ford  v.  Kailroad  Co.,  14  Wis.  ()(i3,  the 
owner  of  lots  abutting  on  a  street  iu  a  city 
brotight  an  action  against  a  railroad  com- 
l)any  to  recover  damages  caused  by  the 
construction  of  its  road-bed  through  the 
street  in  front  of  his  lots,  and  for  an  in- 
junction restraining  th(>  defendant  from  lay- 
ing down  its  rails  iu  front  of  his  proper- 
ty. Dixon,  C.  J.,  iu  writing  the  opinion, 
said:  "It  seems  that  the  past  damages,  or 
those  occasioned  by  the  trespass,  might  have 
been  assessed  by  the  court,  or  the  judge 
might  have  ordered  a  jury  for  that  purpose; 
but  the  permanent  damages,  or  those  Avhich 
would  accrue  to  the  plaintiff  by  the  contin- 
ued use  of  the  land  by  the  company,  can 
only  be  ascertained  in  the  manner  prescribed 
by  the  statute." 

In  Carl  v.  Railroad  Co.,  46  Wis.  G2.5,  1  N. 
W.  295,  the  complaint  alleged  that  plaintiff 
owned  iu  1869,  and  continued  to  own  uutil 
1873,  a  city  lot.  with  a  dwelling-house  there- 
on;   that  iu  1SG9  defendant  constructed  its 
road,   with  embankment  and   ditches,  along 
and  on  each  side  of  the  center  of  the  street, 
in  front  of  the  lot,  and  maintained  the  same 
to    the    commencement   of   the    action,    and 
thereby  obstructed  access  to  the  house  and 
lot,  and  diiuinished  their  value;    that  by  rea- 
son   of    the    premises    plaintiff,    before    the 
'commencement  of  the  action,  was  compelled 
to  sell  and  did  sell  his  property  for  a  sum 
less   by   $1,000  thau   could    otherAvise   have 
been    procured    for   it,    and    that    defendant 
had  refused  on  demand  to  make  compensa- 
tion for  the  injuries  so  sustained,   and  had 
taken  no  steps  under  its  charter  to  have  the 
damages    ascertained,    and    judgment    was 
asked    for    the    sum    of   $1,000;     and    it    was 
held  that  the  action  must  be  treated  as  one 
for  damages  for  a  continuing  trespass,  and 
that  the  complaint  stated  facts  sutficieut  to 
sustain   such    an   action;     that   the   plaintiff 
in  such  an  action,  however,  can  recover  noth- 
iug  more  than  the  damages  to  the  property 
resulting    from    the    trespass    between    the 
building  of  the  road  and  the  commencement 
of  the  action;    that  such  a  recovery  w^ould 
be  no  bar  to  a  future  recovery  by  plaintiff 
or  his   grantee   for   subsequent  damages   to 
the  property  by  a  continued  maintenance  of 
the    road;     and    that    evidence    of    the   per- 
manent   depreciation    in    the    v.alue    of    the 
land  resulting  from  such  road  Avas  inadmis- 


sible. The  judge  writing  the  opinion  .said: 
"The  recovery  in  the  present  action  will  l)e 
a  bar  only  as  to  damages  sustained  previous 
to  the  commencement  of  the  same,  and  the 
i)laintiff  or  her  grantees  can  recover  in 
another  action  for  any  injury  caused  to  the 
lot  by  the  mainteuauce  of  such  railroad  sub- 
sequent to  the  commencemeut  of  this  ac- 
tion." 

In  Blesch  v.  Kailroad  Co.,  43  Wis.  183,  it 
Avas  held  that  the  rule  of  damages  in  such 
a  case  as  that,  is  the  difference  in  value  of 
the  use  of  the  lot,  Avithout  the  railroad  track 
and  Avith  the  railroad  track,  between  the 
date  of  building  the  same  and  the  commence- 
meut of  the  action.  Justice  Cole,  in  deliver- 
ing the  opinion,  said:  "The  damages  re- 
coverable in  the  action  are,  of  course,  for 
the  past  injury  to  the  freehold  and  posses- 
sion; that  is,  the  pecuniary  loss  AA'hich  the 
trespass  had  caused  the  plaintiff  in  the  use 
and  enjoyment  of  his  property  Avhen  the 
suit  was  commenced."  And.  further:  "One 
reason  why  a  railroad  company  can  be 
charged  Avith  the  permanent  damages  for 
taking  land  for  its  use  only  in  a  proceeding 
under  the  statute  for  asserting  the  right  of 
eminent  domain,  is  that,  AA'heu  such  dama- 
ges are  paid,  the  company  is  entitled  to 
have  a  clear  title  to  the  property  so  taken, 
and  such  title  cannot  be  acquired  in  an  ac- 
tion for  a  trespass  or  nuisance.  Another 
reason  is  that,  in  the  action  to  recover  dam- 
ages for  the  nuisance,  the  plaintiff  may 
have  judgment  to  abate  the  nuisance,  and 
it  Avould  be  clearly  unjust  that  the  plaintiff 
should  recover  damages  for  a  continuance 
of  the  nuisance,  and  at  the  same  time  have 
judgment  to  abate  and  remove  the  same." 
See,  also.  Canal  Co.  v.  Bourquin,  51  Ga.  379. 
In  harmony  Avith  these  authorities  are  the 
views  of  approved  text  Avriters.  3  Bl. 
Comm.  220;  Sedg.  Meas.  Dam.  155;  Mayne, 
Dam.  (1st  Am.  Ed.)  §§  110,  111;  1  Suth. 
Dam.  199,  202,  369,  399.  AVhile  the  author- 
ities in  other  states  are  not  entirely  harmo- 
nious, those  which  I  have  cited  give  the 
general  drift  of  the  decisions. 

But  Avhatever  diftiereuce  there  may  be 
iu  other  states  as  to  the  rule  of  damages 
under  consideration,  in  this  state  there  is 
none  Avhatever.  Here  the  authorities  are 
entirely  uniform,  that  in  such  an  action  as 
this  damages  can  be  recoA'ered  ouly  up  to 
the  commencement  of  the  action,  and  that 
the  remedy  of  the  plaintiff"  is  by  successive 
actions  for  his  damages  until  the  nuisance 
shall  be  abated.  The  laAV  Avas  so  announced 
in  (ireen  v.  Railroad  Co.,  05  Hoav.  Prac.  154; 
Taylor  v.  RailA\'ay  Co.,  50  N.  Y.  Super.  Ct. 
312;  Duryea  v.  Mayor,  etc.,  26  Hun,  120,— 
all  cases  entirely  analogous  to  this.  In  Me- 
Keou  V.  See,  4  Rob.  449.  it  Avas  held  that  the 
only  damages  which  the  plaintiff  is  entitled 
to  recover  in  an  action  against  an  adjoining 
OAvner  for  a  nuisance  upon  the  premises  of 
the  latter  are  those  for  a  depreciation  of 
the  rt>iit  and  loss  of  tenants  caused  by  such 


102 


PRESP:NT  AM)  PKOSrECTlVP:  damai^es. 


nuisance  previous  to  the  conimeucemeut  of  i 
the  action.  In  Whituiore  v.  Blschoff,  5  Hun, 
17(!,  it  was  hekl  that  the  damages  which  a 
party  can  recover  for  a  private  nuisance 
are  those  which  he  has  sustained  previous 
to  the  bringing  of  the  action,  and  that  it  is 
error  to  allow  a  recovery  for  the  diminution 
in  value  of  the  premises  based  upon  the  as- 
sumption that  the  nuisance  is  to  continue 
forever.  In  Duryea  v.  :Mayor,  etc..  26  Hun, 
120,  the  action  was  brought  to  recover  the 
damages  occasioned  by  the  wrongful  act 
of  one  who  had  discharged  water  and  sew-  [ 
age  upon  the  land  of  another,  and  it  was  I 
held  that  no  recovery  could  be  had  for  dam- 
ages occasioned  by  discharge  of  water  and  i 
sewage  upon  the  land  after  the  commence- 
ment of  the  action.  In  Blunt  v.  McCormick,  i 
3  Denio,  283.  the  action  was  case  for  dam-  j 
ages  in  consequence  of  the  erection  of  a 
building  adjoining  plaintilfs,  whereby  plain- 
tiff's light  was  obstructed.  The  plaintiff 
was  defendant's  tenant.  The  court  at  the 
trial  charged  the  jury  that  if  the  plaintiff 
was  entitled  to  recover  they  should  give  dam- 
ages for  the  injury  which  he  would  suffer 
during  the  whole  of  his  term.  It  was  held 
that  this  charge  was  erroneous,  and  that  a 
recovery  could  be  had  only  for  such  dam- 
ages as  had  occurred  at  the  time  the  suit 
was  commenced,  and  not  for  the  whole  term. 
In  Plate  v.  Railroad  Co.,  37  N.  Y.  473,  the 
action  was  brought  to  recover  damages 
caused  by  keeping  and  maintaining  the  de- 
fendant's railroad  track,  and  ditches  along 
the  side  thereof,  in  such  manner  as  to  cause 
the  Avater  to  flow  l)ack  upon  the  plaintiff's 
land.  There  had  been  a  former  recovery 
of  damages  for  the  same  cause,  which  was 
alleged  as  a  bar  to  the  second  action;  but 
it  was  held  not  to  be  a  bar.  The  judge 
writing  the  opinion  said:  "If,  indeed,  he 
could  have  recovered  damages,  not  only  for 
all  injuries  which  had  occurred  previous  to 
the  commencement  of  the  action,  but  also 
for  all  injuries  which  may  possil)ly  there- 
after occur,  the  first  recovery  would  be  a 
bur  to  the  second." 

In  Williams  v.  Railroad  Co.,  16  N.  Y.  97,  and 
Story  V.  Railroad  Co.,  6  N.  Y.  85,  a  resort  to 
equity  was  allowed  because  the  necessity  of 
bringing  successive  actions  to  recover  dam- 
ages would  thus  be  obviated.  If.  in  those 
cases,  the  plaintiffs  could  have  recovered  all 
their  damages,  past  and  prospective,  in  actions 
at  law,  equitable  actions  would  have  been 
unnecessary  and  imauthorized.  The  case  of 
Mahon  v.  Railroad  Co.,  24  N.  Y.  658,  is  a  pre- 
cise authority;  and,  if  there  were  no  other, 
ought  to  control  the  decision  of  this  case.  In 
that  case  the  railroad  company  constracted 
its  road  and  laid  its  tracks  upon  a  highway 
in  front  of  Mahon's  premises.  His  title  to  the 
adjoining  premises  extended  to  the  center  of 
the  street,  and  in  1842  he  commenced  an  ac- 
tion against  the  railroad  company  to  recover 
damages  in  consequence  of  the  construction 
and  operation  of  the  railroad  in  the  liignway 


in  front  of  his  premises,  and  he  recovered  a 
judgment.  Afterwards  he  died,  and  then  his 
executors  instituted  an  action  to  recover  dam- 
ages sustained,  during  the  lifetime  of  the  tes- 
tator, subsequently  to  the  former  recovery, 
for  a  continuance  of  the  railroad  and  its  con- 
tinued operation  in  the  street;  and  to  the  last 
action  the  defendant  interposed  as  a  defense 
tlie  former  recovery,  and  it  was  held  not  to 
l)e  a  bar.  As  disclosed  by  the  printed  pa- 
pei's  to  be  found  in  the  state  library,  the  dec- 
laration in  the  first  action  contains  four 
counts.  In  the  first  and  fourth,  among  other 
things,  it  was  aUeged  that  the  plaintiff  law- 
fully owned  and  possessed  a  lot,  and  dwell- 
ing-house thereon,  and  that  the  defendant 
caused  to  be  wrongfully  constructed  an  em- 
bankment of  earth  of  the  height  of  five  feet 
in  front  of  his  premises,  and  wrongfully  con- 
tinued and  maintained  the  same,  and  oper- 
ated its  railroad  thereon,  by  means  whereof 
he  could  not  have  and  enjoy  his  free  and  un- 
obstructed passage  into  and  upon  his  lands 
and  to  and  from  his  dwelling-house,  and  his 
lot  and  dwelling-house  were  flooded  with  wa- 
ter, and  rendered  damp,  and  his  buildings 
and  property  were  greatly  injured  and  de- 
preciated in  value.  It  is  thus  seen  that  the 
character  of  the  injuries  complained  of  in 
that  action  were  like  those  complained  of 
here,  and  that  a  depreciation  in  the  value  of 
the  property  was  claimed.  If  the  complaint 
here  is  broad  enough  to  recover  for  perma- 
nent diminution  of  the  value  of  the  property, 
upon  the  theory  that  the  nuisance  was  to  be 
permanent,  so  the  declaration  there  was 
Itroad  enough  to  recover  damages  upon  the 
same  theory;  and  if  the  facts  of  this  case  are 
sufficient  to  justify  and  uphold  a  recovery 
for  permanent  injury  and  diminution  in  value 
of  the  property,  so,  clearly,  were  the  facts  of 
that  case.  In  the  argument  before  this  court 
of  the  second  case,  which  is  above  cited,  it 
was  claimed  that  the  declaration  in  the  flrst 
suit  was  broad  enough  to  embrace  the  dam- 
ages which  INIahon's  property  sustained  by 
the  construction  of  the  railroad,  through  all 
lime,  and  that,  whether  it  was  or  not,  the  re- 
sult should  be  the  same,  as  the  damages  re- 
sulting from  the  construction  of  the  railroad 
were  incapable  of  being  split  up  and  made  the 
subject  of  an  infinite  number  of  actions;  and 
that  the  true  rule  in  siich  a  case  was  that 
the  plaintiff  was  at  liberty  to  prove,  and  the 
jury  were  bound  to  consider,  what  damages 
might  probably  be  the  result  of  the  act  com- 
plained of,  and  the  finding  in  one  case  must 
embrace  all  the  damages.  On  the  other  hand, 
it  was  claimed  that  the  plaintiff  in  that  suit 
could  have  recovered  damages  legally  only 
up  to  the  commencement  of  the  suit.  The 
court  at  the  trial  of  the  second  action  held 
that  the  former  recovery  was  a  bar.  and  upon 
that  ground  nonsuited  the  plaintiff's.  They 
then  appealed  to  the  general  term,  where  the 
prevailing  opinion  for  affirmance  was  written 
by  .ludge  Allen.  He  held  that  the  former  re- 
covery was  a  bar;    but  stated  in  his  opinion 


PHESKNT  AM»   I'Ut  (STIXTI  VE  DAMAGES. 


103 


tliat  "if  the  wrons  oonipljiiiuHl  of  had  l)oon 
a  technical  nuisance,  in  the  legal  sense  of  the 
term,  a  recovery  for  damages  for  the  eroc- 
liou  woidd  not  bar  an  action  for  the  coutinu- 
.■linc;"  that  "every  day's  continuance  would 
he  a  legal  wrong,  for  Avhich  an  action  would 
lie;"  that  "a  right  cannot  exist  to  continue  a 
nrdsance,  and  every  party  affected  by  it  may 
insist  upon  its  removal,  and  the  neglect  to 
comply  with  the  duty  resting  upon  a  party  to 
abate  a  nuisance  which  he  has  either  erected 
or  maintained  gives  an  action  to  any  party 
injured  by  the  neglect."  But  he  held  that 
the  railroad  was  not  to  be  treated  as  a  nui- 
sance, and  that  the  company  had  permanent- 
ly api)ropriated  the  highway  to  its  use,  and 
therefore  permanent  damages  could  be  recov- 
ered; and  his  opinion,  if  sound,  would  uphold 
this  recovery.  Judge  Pratt  wrote  a  dissent- 
ing opinion,  taking  an  opposite  view.  In  his 
opinion  he  said:  "If  the  injury  complained 
of  was  of  that  nature  that  he  was  entitled  to 
recover  prospective  damages,  he  should  have 
proved  them  in  that  suit.  The  law  will  not 
suffer  a  party  to  unnecessarily  split  up  de- 
mands, and  thus  needlessly  multiply  suits." 
And,  further:  "The  track  and  embankment 
would,  under  such  circumstances,  be  a  con- 
tinuing nuisance,  and  the  defendants  would 
be  liable  to  a  new  action  every  day  so  long 
as  they  kept  it  up,  and  damages  would  accrue 
to  the  owner.  A  person,  by  erecting  a  nui- 
sance on  the  lands  of  another,  or  by  trespass- 
ing ou  such  lauds,  acquires  no  right  thereby, 
and  a  recovery  of  damages  for  the  injuries 
sustained  does  not  have  the  effect  to  vest  the 
title  in  the  wrong-doer,  as  in  the  case  of  a  con- 
version of  personal  property."  And  here  the 
judgment  was  unanimously  reversed.  Gierke, 
J.,  writing  the  opinion,  commenced  by  say- 
ing: "If  the  plaintiffs  testator  could  have  re- 
covered all  that  he  was  entitled  to  in  the  first 
action,  it  is,  of  course,  a  bar  to  the  second; 
and  this  depends  chiefly,  thoiigh  not  alto- 
gether, upon  the  question  whether  the  Utica 
&  Schenectady  Railroad  Company  in  any 
way  transcended  the  authority  constitution- 
ally vested  in  them  by  the  legislature.  If 
they  did.  their  road  is  a  nuisance, — a  perpet- 
ual nuisance,— and  every  day's  continuance 
of  it  is  a  legal  wrong  for  which  they  are 
liable  in  damages  after  they  have  accrued."' 
And  he  held  that  the  railroad  company  did 
transcend  its  authority  by  entering  upon  the 
highway  Avithout  first  causing  Mahon's  dam- 
ages to  be  assessed  and  paid;  and  that  the 
illegal  appropriation  of  the  higliway  made  it 
liable  to  damages  in  successive  actions  as  the 
damages  accrued.  And  he  further  said: 
"The  railroad  company,  therefore,  having, 
without  compensation  to  those  entitled  to  the 
reversion  of  the  lands,  constructed,  main- 
tained, and  operated  their  road  upon  the  high- 
way in  question,  acted  and  continued  to  act 
unlawfully,  are  liable  to  damages  from  time 
to  time  as  they  accrued,  and  on  this  ground 
the  second  action  is  maintainable."  In  the 
course  of  the  opinion,  this  language  is  used: 


"If  they  did  not  transcend  their  auihority. 
and  yet  in  constructing  their  road  have  n  ■(■- 
essarily  injured  the  riglits  of  others,  tliey  are 
etiually  li.-ible  to  respond  for  prospective  as 
well  as  accrued  damages;  and  in  such  case 
they  cannot  be  vexed  again  in  a  second  ac- 
tiim." 

It  is  not  apparent  precisely  wliat  was  meant 
l)y  tliis  phrase.  It  is  a  mere  dictum,  and 
certainly  announces  an  erroneous  rule  of  law. 
It  may  be  that  the  learned  judge  was  misled 
by  the  doctrine  ap])arently  laid  down  in 
Fletclier  v.  Railroad  Co.,  supra.  The  same 
judg( ,  in  Plate  v.  New  York  Cent.  R.  Co.,  su- 
pra, si)eaking  of  that  paragraph  says:  "I  am 
inclined  to  think  there  is  some  clerical  or 
typographit-al  mistake  here;  or,  perhap.s, 
there  Avas  some  inadvertence  on  my  part  in 
the  haste  of.  writing;"  and  that  it  can,  "at 
most,  be  considered  nothing  more  than  a  dic- 
tum, and  therefore  cannot  control  the  present 
case." 

There  is  no  authority  to  be  found  in  tliis 
state  holding  any  other  rule  of  damages  in 
such  a  case.  The  case  of  Henderson  v.  Rail- 
road Co.,  78  X.  Y.  42o,  is  not  in  conflict,  as 
that  was  an  equitable  action;  and  in  the  opin- 
ion written  in  that  case  the  rule  is  recognized 
to  be  otherwise  in  actions  at  law;  and  the 
case  of  INIahon  v.  Railroad  Co.  is  expressly 
recognized,  and  it  was  certainly  not  intended 
to  overrule  or  depart  from  it  or  auy  of  the 
prior  authorities.  The  judgment  there  was 
based  entirely  upon  equitable  princriples,  and 
then  it  was  ordered  that,  upon  payment  of 
the  sum  awarded  by  the  referee,  the  plaintiff 
should  convey  the  title  to  the  defendant.  If 
the  case  of  Mahon  v.  Railroad  Co.,  suppoi'teil. 
as  it  is.  by  abundant  authority,  and  based  up- 
on common-law  principles,  which  in  this  state 
have  always  been  recognized,  is  to  be  disi-e- 
garded  in  the  decision  of  this  case,  it  had  bet- 
ter be  distinctly  overruled,  and  no  longer  left 
to  lure  the  legal  wayfarer  by  its  false  light. 
See.  also,  Schell  v.  Plumb,  .55  N.  Y.  .592,  .59S. 

The  rule  contended  for  by  the  plaintiff,  and 
artirmed  by  the  supreme  court  in  this  case, 
would  lead  to  some  embarrassments  and  to 
great  inconvenience.  The  plaintiff's  recovery 
cannot  divest  her  of  any  legal  rights  she  has 
in  the  street,  either  to  an  easement  or  to  the 
soil;  and  if  we  may  assume  that  her  recov- 
ery would  bar  any  future  recovery  for  the 
precise  embankment  and  the  precise  use 
thereof  which  existed  at  the  time  of  the  com- 
mencement of  her  action,  yet  it  would  nut 
bar  a  recovery  if  there  should  be  a  change  in 
the  embankment  or  the  use  thereof.  If  the 
defendant  should  run  a  few  more  trains  of 
cars,  or  raise  its  embankment,  or  widen  it. 
or  change  it  in  any  way,  the  plaintiff  would 
be  permitted  to  Institute  a  new  action,  and  to 
repeat  her  action  every  time  there  should  be 
any  change.  And  yet  she  has  recovered 
damages  in  this  action  upon  substintially  the 
same  theory  damages  would  have  l)een 
awarded  if  there  had  been  an  appraisement 
under  the  statute  which  vested  title  in  the 


1U4 


PKESENT  AND  PltOSI'ECTl\'E  DAMA<;ES. 


acft'iulnnt.  If  the  rule  affirmed  be  the  cor- 
rect oue.  then  a  raUroad  company  authorized 
to  construct  its  road  may  enter  upon  the 
lands  of  any  private  person,  and  take  them, 
and  in  a  suit  for  trespass  the  plaintiff  must 
recover  his  entire  damages,  and  the  railroad 
company  must  become  substantially  vested 
with  the  title  to  the  land;  and  thus,  instead 
of  conforming  to  the  statute,  it  may  acquire 
land  by  a  pure  trespass.  And  so  the  owner 
of  land,  instead  of  resorting  to  the  constitu- 
tional tribunal  for  the  appraisement  of  his 
damages,  may  have  them  appraised  by  au 
action  which  really  vests  no  perfect  title. 
Can  the  statute  of  frauds  be  subverted,  and 
a  perpetual  easement  or  right  in  land,  with- 
out a  grant,  be  thus  conveyed  by  mere  estop- 
pel? In  this  case  has  happened  what  may 
happen  in  many  cases.  The  defendant  sup- 
posed, and  had  the  right  in  good  faith  to 
suppose,  that  it  had  satisfied  plaintiff's  dam- 
ages and  accjuirod  all  her  property  interest 
in  the  street  until  the  verdict  of  the  jury  un- 
deceived it;  and  then,  if  the  verdict  shall 
stand,  it  became  obliged  to  pay  her  for  per- 
petual damages,  although  they  had  come  to 
an  end,  and  to  make  the  same  compensation 
Avhich  it  would  have  been  required  to  make 
if  it  had  acquired  a  perfect  title  under  tEe 
statute;  and  yet  it  is  left  without  a  perfect 
title,  liable  to  successive  suits  on  the  claim, 
to  be  established  on  the  uncertain  evidence 
of  witnesses  that  its  burden  upon  or  interfer- 
ence with  the  street  had  been  changed  or  in- 
creased. It  was  not  left  the  option  either  to 
abate  the  alleged  nuisance,  or  to  perfect  its 
title,  in  the  mode  prescribed  by  law,  to  any 
e:isement  or  interest  the  plaintiff  might  have 
in  the  street. 

The  law  will  not  proceed  upon  the  assump- 
tion that  a  nuisance  or  illegal  conduct  will 
continue  forever.  The  impolicy  and  absurd- 
ity of  such  an  assumption  is  illustrated  in 
this  case,  as  the  defendant  offered  to  prove, 
and  hence  it  may  be  taken  as  true,  that  since 
the  commencement  of  the  action  it  has  re- 
duced the  street  to  its  former  grade.  The 
rule  laid  down  in  the  cases  which  I  have 
cited,  and  which  I  contend  is  the  true  one. 
gives  any  party  who  has  suffered  any  legal 
damages  by  the  construction  or  operation  of 
a  railroad  ample  remedy.  He  may  sue  and 
recover  his  damages  as  often  as  he  chooses, 
—once  a  year,  or  once  in  six  years,— and  have 
successive  recoveries  for  damages.  He  may 
enjoin  the  operation  of  the  railroad,  and 
compel  the  abatement  of  the  nuisance  by 
an  action  in  equity,  and  where  his  premises 
have  been  exclusively  appropriated,  or  where 
a  highway,  in  the  soil  of  which  he  has  title, 
has  been  exclusively  appropriated  by  a  rail- 
road, he  may  undoubtedly  maintain  an  action 
of  ejectment.  Brown  v.  Galley,  Hill  &  D. 
3(tS;  Etz  V.  Daily,  20  Barb.  32;  Eedtield  v. 
llailroad  Co.,  2.5  Barb.  54.  It  certainly  can- 
not l)e  necessary  to  subvert  the  law  as  it  has 
been  well  established,  in  order  to  give  the 
plaintiff  ample  remedy  for  any  wrong  which 


tlie  defendant  has  done  or  can  do  her  in  the 
street  in  front  of  her  premises.  Nor  can  it 
be  expedient  to  introduce  into  the  nomen- 
clature of  the  law  a  new  action, — one  to  re- 
cover for  the  conversion  of  real  property,  to 
be  followed  by  the  same  consequences  as  au 
action  for  the  conversion  of  personal  prop- 
erty. 

As  to  this  rule  of  damages,  it  matters  not 
whixt  the  form  of  the  complaint  in  the  first 
action  was.  The  plaintiff  is  boimd  to  re- 
cover in  his  first  action  all  the  damages  to 
which  he  is  entitled.  If  he  is  entitled  to 
damages  for  permanent  injury  to  his  prop- 
erty, it  is  not  optional  for  him  to  split  them 
up,  and  recover  part  ol  them  in  the  first  ac- 
tion, and  then  liring  subsequent  actions  for 
the  rest.  If  entitled  to  recover  damages  only 
up  to  the  commencement  of  his  action,  no 
form  of  complaint  will  entitle  him  to  recover 
more.  In  the  case  of  Mahon  v.  Railroad  Co. 
it  Mas  proved  that  the  former  recovery  was 
for  damages  only  to  the  commencement  of 
the  former  action,  and  yet  that  circumstance 
was  not  deemed  material. 

Since  writing  the  above,  the  case  of  City  of 
North  Vernon  v.  Voegler  (Ind.)  2  N.  E.  821, 
containing  a  very  elaborate  opinion,  has  come 
to  our  attention.  I  have  carefully  examined 
that  case,  and  find  that  it  is  not  authority 
for  the  plaintiff  on  the  question  now  under 
discussion.  There  the  city  had  the  right  to 
grade  one  of  its  streets,  but  did  it  so  negli- 
gently as  to  cause  damage  to  the  adjoining- 
lots  of  the  plaintiff",  and  it  was  held  that  he 
could  recover,  and  was  bound  to  recover,  all 
his  damages  in  a  single  action.  It  was  de- 
cided that,  in  the  absence  of  negligence,  there 
would  have  been  no  liability  for  conseqtien- 
tial  damages  caused  by  what  was  rightfully 
done  in  the  street.  The  judge,  writing  the 
opinion,  said:  "Our  decisions  have  long  and 
steadily  maintained  that  miuiicipal  corpora- 
tions are  not  responsible  for  consequential 
injuries  resulting  from  the  grading  of  streets 
when  the  work  is  done  in  a  careful  and  skill- 
ful manner,  but  they  have  quite  as  steadily 
maintained  that,  wliere  the  work  is  done  in 
a,  negligent  and  tuiskillful  manner,  the  cor- 
poration is  liable  for  injiu'ies  restilting  to 
adjacent  property." 

Here  there  was  no  allegation  or  proof  or 
claims  of  negligence  or  uuskillfidness  in  the 
construction  of  the  embankment  in  the  street; 
and,  as  I  have  shown,  it  was  assumed  and 
conceded  upon  the  trial  that  it  was  lawfully 
and  legally  constructed.  The  trial  judge  did 
not  submit  to  the  jury  any  question  of  neg- 
ligence; but  charged  them,  if  they  found 
against  the  defendant  as  to  the  release,  then 
it  was  absolutely  liable  for  plaintiff's  dam- 
ages, and  that  the  only  question  for  their  con- 
sideration was  the  amotmt  of  the  damages. 
Hence  that  case  is  an  authority  for  the  views 
I  have  expressed  tipon  the  first  groitnd  of 
error  herein  discussed.  But  the  case  is  also 
iuferontially  authority  for  the  second  ground 
of  error  upon  which  I  have  based  my  eonelu- 


riti:si:.\T  a.\i>  i-jjosniciix  i-i  da.maces. 


105 


■sion.      The   judse   writiug   tlic   opiiiidii    tlu-rc 
is   very   careful   to   place   bis   decision    upon 
the  ground   that  the  structure  in  the  street 
was  riglitful,   but  nogligcntly  made,  and  he 
rocogni/cd  the  rule,  as  to  successive  actions, 
to  be  different  "where  the  structure  is  wr(mg- 
J'ully  in  the  street,  and  is  tliere  a  nuisance. 
He  "said:    "This  is  not  the  case  of  a  nuisance. 
It  is  tlie  case  of  a  negligent  improvement  in 
a    street.     The    inii)rovement    was    in    itself 
riglitful  and  legal,  but  the  manner  in  whicli 
tlic    iiinn-ovement   was  made   was   wrongful. 
'IMie  wrong  was  not  ifi  grading  the  street,  but 
in  the  manner  of  doing  it.     It  is  not  a  nui- 
sance for  a   municipal  corporation  to  grade 
its  streets,  but  it  is  an  actionable  wrong  to  do 
it    negligently.     Tlie    wrong    in    negligently 
grading  the  street  is  the  basis  of  the  action, 
for  there  are  no  facts  alleged  constituting  a 
nuisance.     It  is  not  a  nuisance  to  do  what 
the  law  authorizes,  but  it  may  be  tort  to  do 
the  authorized  act  in  a  negligent  manner.    It 
is   evident,   therefore,   that   the  cases   whicli 
hold  that  a   continuance  of  a  nuisance  will 
supply  ground  for  an  action  have  no  influ- 
ence upon  this  case."     And  hence  those  eases 
were  not  cited.     It  is  clearly  to  be  inferred 
that  if  that  court  had  been  dealing  with  the 
case  of  an  unlawful  embankment  placed  in 
the  street  it  would  have  held  that  successive 
actions  could  be  maintained.     But  I  am  of 
opinion  that  that  decision  is  clearly  unsound 
as  to  the  precise  question  adjudged.     What 
right   was   there   to   assume   that   the   street 
would  be  left  permanently  in  a  negligent  con- 
dition, and  then  hold  that  the  plaintiff  could 
recover   damages   upon   the   theorj-  that    the 
carelessness  would  forever  continue?     A  mu- 
nicipality  or   a    railroad   corporation,    under 
proper  authority,  may  erect  an  embankment 
In  a  street;    and,  if  the  work  be  carefully 
and  skillfully  done,  it  cannot  be  made  liable 
for   the   consequential    damages   to    adjacoiit 
property;   but  if  it  be  carelessly  and  unskJll 
fully  done  it  can  be  made  liable.     It  may 
€ease  to  be  careless,  or  remedy  the  effects  of 
its  carelessness,  and  it  may  apply  the  requi- 
site skill  to  the  embankment;  and  this  it  may 
do  after  its  carelessness  and  unsklllfulness. 
and  the  consequent  damages,  have  been  es- 
tablished by  a  recovery  in  an  action.     The 
moment  an  action  has  been  commencecT.  shall 
the  defendant  in  such  a  case  be  precluded 
from  remedying  its  wrong?     Shall  it  be  so 
precluded,  after  a  recovery  against  it?     Does 
it   establish   the   right  to   continue   to   be  a 
wrong-doer  forever  by  the  payment  of  the 
recovery  against  it?     Shall  it  have  no  benefit 
by  discontinuing  the  wrong,  and  shall  it  not 
be   left   the   option    to   discontinue    it?     And 
shall  the  plaintiff  be  obliged  to  anticipate  his 
damages    with    prophetic    ken,    and    foresee 
them  long  before— it  may  be  many  years  be- 
fore—they actually  occur,  and  recover  thorn 
all   in  his  first  action?     I  think  it  is  quite 
absurd  and  illogical  to  assume  that  a  wrong 
of  any  kind  will  forever  be  continued,   and 
that  tlie  wrong-doer  will  not  discontinue  or 


reiiK'dy  it;  and  tli.it  tlie  convenient  and  just 
rule,  sanctioned  by  all  the  authorities  in  this 
state,  and  by  the  great  weight  of  authority 
clsewliere,  is  to  permit  recoveries  in  such 
cases  by  successive  actions  until  the  wrong 
or  nuisMUce  shall  be  terminated  or  abated. 
But,  wlietiier  that  case  was  jiroperly  decided 
or  not,  it  is  not  in  conflict  witli  the  conclu- 
sions I  have  reached  in  this  case,  but  is  in 
entire  harmony  with  them.  Tlierefore,  upim 
l»oth  grounds  considered  in  this  case,  there 
should  be  a  reversal  of  this  judgment,  and  a 
new  trial. 

All  concur,  except  DANFOKTII.  J.,  who 
reads  dissenting  opinion,  and  MILTiETl,  J., 
not  voting. 

DAXFORTH,  J.  (dissenting).  The  action 
was  commenced  November  5,  1878.  Upon  the 
first  trial  tlie  plaintiff  had  a  verdict,  wliich 
upon  appeal  was  set  aside.  Upon  the  second 
the  jury  disagreed.  Upon  the  third  and  last 
she  again  succeeded,  and  the  result  has  been 
approved  by  the  general  term.  It  is  now  ob- 
jected by  the  defendant  that  the  trial  court 
erred  (1)  in  its  rulings  on  the  question  of 
damages;  (2)  in  regard  to  evidence;  (3)  in 
its  charge  to  the  jury,— and  hence  the  case 
should  go  back  again  for  another  trial. 

The   plaintiff  alleged  and  proved   that  she 
owned  and  occupied,  in  person  and  by  ten- 
ants, certain  improved  lots  of  land  lying  on 
the  northerly  side  of  Colonic  street,  and  ex- 
tending to  its  center;  that  between  the  houses 
on  those  lots  and  the  traveled  roadway  was  a 
sidewalk;  and,  by  her  complaint,  alleged  that 
the  defendant  entered  upon  the  property,  and 
tore   up   the   pavement   in   Colonic   street   in 
front  of  the  houses,  raised  the  street  higher 
than  it  was  before,  and  also  the  street  west 
of  said  premises  and  between  said  houses  and 
the  west  side  of  Broadway,  and  tore  up  and 
raised  the  sidewalks  in  front  of  her  houses, 
and  raised  and  filled  up  the  gutter  in  front 
of  them,  and  so  shaped  the  street  and  gutters 
as  to  pour  the  water  therefrom  down  over 
said  sidewalk  and  into  the  basements  of  said 
houses,  by  reason  of  which  the  premises  are 
made  liable  to  be  flooded   with   water,   and 
have  been  at  different  times  flooded  with  mud. 
filth,  and  water,  and  the  property  therein  in- 
jured, and  the  said  premises  rendered  damp 
and  unhealthy,  and  by  which  the  rental  value 
of  said  houses  was  greatly  depreciated;    and 
also  that  the  shape  given  to  the  surface  of 
said  street  by  the  defendant  is  such   as   to 
make  the  approach  to  said  houses  inconven- 
ient and  unsafe,  and  to  interfere  with  the  use 
of  the  same,  and  depreciate  its  value,  and  that 
said  street  is  made  so  steep  in  its  decline  oh 
the  north  side  that  wagons  cannot  safely  or 
conveniently  stand  in  front  of  said  premises 
of  said  plaintiff;   and  asked  for  damages  sus- 
tained by  reason  of  these  acts.     The  evidence 
fairly  tended  to  establish  the  truth  of  these 
averments,   and   showed   that   the  acts   com- 
plained  of   were  done  by   the   defendant   in 
widening  and  raising  its  road-bed  and  mak- 


100 


PKESENT  AND  IMtUSl'KCTlVE  l)AMA(iKS. 


iug  aJditional  tracks.  In  doing  this  they 
raised  the  carriage-way  of  tlie  street  from  two 
to  three  feet,  malting  it  liiglier  than  the  side- 
wallvs.  Evidence  Avas  received,  against  the 
objection  of  the  defendant,  to  show  a  depreci- 
ation, caused  by  these  clianges,  in  the  marliet 
value  of  the  liouses  and  lots,  and  afterwards 
witnesses  were  called  T)y  the  defendant  to 
speak  upon  the  same  subject.  The  question 
was  fairly  litigated.  The  defendant  did  not 
claim  that  damages  did  not  result  from  its 
acts,  but  insisted  that  "the  proper  measure 
of  damages  should  Ite  any  injury  to  the  rental 
value  prior  to  the  commencement  of  the  suit, 
and  the  cost  of  restoring  the  street  to  its 
former  condition;  that  there  is  nothing  in  the 
complaint  or  in  the  evidence  which  renders 
material  any  evidence  as  to  the  market  value 
of  the  property,  either  before  or  after  the  al- 
leged wrongful  act;"  but  the  court  held  that 
there  was  nothing  in  "the  case  to  show  that 
the  alteration  in  the  street,  and  construction 
of  tracks,  was  for  a  temporary  purpose,  or  a 
mere  trespass:  but.  on  the  contrary,  appeared 
to  be  of  a  permanent  kind  and  character,  and 
the  complaint  sufhcient."  The  case  was  sub- 
mitted to  the  jury,  in  a  way  not  excepted  to, 
to  say  upon  the  evidence  whether  there  had  in 
truth  been  a  depreciation  of  the  property  aris- 
ing from  the  acts  of  the  defendant  in  and 
upon  the  street;  but,  being  asked  by  the  de- 
fendant's counsel  to  charge  "that  under  the 
evidence  the  jury  will  not  be  justitied  in  ren- 
dering a  verdict  for  the  supposed  difference 
in  market  value  in  the  premises  before  and 
after  the  act  in  question,"  the  judge  refused 
to  do  so,  and  added:  "For  the  purpose  of 
presenting  that  ciuestion  sharply,  I  charge 
that  the  plaintiff  can  recover  the  difference  in 
the  market  value  of  the  property,  provided 
you  tind  that  the  act  of  the  defendant  has 
impaired  the  market  value,  and  to  the  extent 
it  has  impaired  it."  Defendant's  counsel  ex- 
cepted. The  defendant  asked  the  court  to 
charge:  "If  the  jury  believe  such  acts  were 
done  witliout  the  permission  of  the  city,  and 
were  unlawful,  then  the  measure  of  damages 
would  be  the  actual  injury  sustained  by  plain- 
tiff before  the  commencement  of  this  action, 
including  the  loss  of  rent  and  the  injury  to  the 
use  and  enjoyment  of  the  property  before  the 
commencement  of  this  action,  if  any."  The 
court  declined  to  charge  tliat,  saying:  "There 
is  no  proof  one  way  or  the  other  upon  that 
(luestion.  Whether  this  was  an  authorized 
or  an  unauthorized  act,  there  is  no  presump- 
tion in  favor  of  the  trespass."  Defendant's 
counsel  excepted. 

Upon  this  branch  of  the  case  the  defendant 
is  without  merit,  unless  it  is  liable  to  be  again 
vexed  for  the  saiue  cause.  It  took  possession 
of  the  plaintiff's  property  without  permission, 
and  is  called  upon  to  pay  so  much  only  as 
will  make  good  her  loss,— no  more  than  she 
would  have  been  entitled  to  had  the  defendant 
made  her  an  involuntary  vendor  under  com- 
pulsory proceedings,  by  which  the  same  result 
would  Ihive  been  reached.     In  such  a  case  as- 


tuteness would  be  misapplied,  wlion  the  only 
purpose  is  to  obtain  a  new  trial,  to  be  fol- 
low(>d.  as  is  conceded,  by  a  verdict  for  some 
amount,  and,  after  that,  statutory  proceed- 
ings to  acquire  title  in  deference  to  the  law 
(Laws  IS'47,  c.  272;  Laws  1850,  c.  140,  §  21. 
amended  by  Laws  ISti'J,  c.  237,  §  1)  which 
provides  for  a  case  where  a  railroad  compan.v 
shall  not  have  acquired  a  valid  and  sutticieiit 
title  to  any  land  upon  which  they  shall  have 
constructed  their  track.  Under  these  stat- 
utes application  might  be  made  to  the  coiu't 
by  petition,  and  compensation  for  the  land 
determined  by  a  jury.  It  is  true,  these  are 
not  the  proceedings  before  us,  but  the  same 
tiling  has  been  accomplished. 

Tlie  defendants  were  without  title.  They 
have  constructed  their  tracks,  and  the  com- 
pensation to  be  made  has  been  determined  by 
a  jury.  In  some  way,  it  cannot  be  doubted 
that  the  plaintiff  is  entitled  to  damages  or 
compensation  upon  the  scale  applied  by  the 
trial  court.  Of  course,  the  defendant  shovild 
not  be  liable  to  enlarged  compensation,  nor  to 
a  double  payment.  Here  there  is  no  unusual 
compensation.  It  is  measured  by  the  amount 
for  which  the  property  would  be  depreciated 
ill  market  value  by  the  change  of  roadway  \o 
accommodate  the  new  tracks  and  structure 
which  the  defendant  placed  upon  the  street. 
This  represents  merely  the  pLiintiff's  actual 
loss  and  damage,  and  its  payment  should  pro- 
tect the  defendant  from  further  action.  I 
think  it  will.  Where  the  wrong  consists  of 
a  single  act  of  destruction,  the  cause  of  ac- 
tion is  complete,  and  the  party  injured  must 
have  full  compensation  in  the  first  suit,  not 
only  for  the  act,  but  for  all  the  consequences 
which  could  arise  from  it.  Clegg  v.  Dearden, 
12  Q.  B.  07(3. 

The  statutes  referred  to,  allowing  the  assess- 
ment of  compensation  where  the  railroad  com- 
pany has  without  right  placed  its  tracks  upon 
the  land  of  another,  in  terms  apply  to  any 
such  case,  and  go  upon  the  assumption  that 
the  appropriation  of  the  use  of  the  land,  and 
the  structure  placed  upon  it,  are  permanent: 
and  such  is  its  nature.  It  is  for  the  punioses 
of  its  incorporation;  public  policy  requires 
that  it  should  remain,  and  although  in  the 
first  instance  without  right,  yet,  after  compen- 
sation has  been  determined  and  paid,  the  com- 
pany become  possessed  of  such  laud  during- 
the  continuance  of  the  corporation.  Laws 
1847,  c.  404,  §  3. 

This  principle  was  applied  in  the  Henderson- 
Case,  78  N.  Y.  423,  where,  in  behalf  of  the 
defendant,  it  was  argued,  as  it  is  here,  that 
the  defendant's  acts  amounted  simply  to  a 
series  of  trespasses  which  might  be  the  sub- 
ject of  fresh  actions,— a  new  one  eveiy  day. 
The  defense  did  not  prevail,  and  unless  a 
distinction  favorable  to  the  defendant  can  be 
drawn  from  the  fact  that  this  is  an  action  at 
law,  and  that  a  suit  in  equit*^,  it  is  decisive 
here.  In  that  case  full  compensation  was 
awarded  upon  conditions  whi  'H,  when  com- 
plied witli,  protected  the  defendant  in  the  en- 


PIMOSHNT  AM>  I'K*  >Sri:»   Tl  VK  DA.MAdES. 


1U7 


joymonf  of  the  proporty  trospasscd  ui>on.  In 
this  case  the  same  i-(>sult  foUows.  The  com- 
))laint  charges,  as  the  result  of  the  defeiul- 
aufs  acts,  depreciation  of  the  value  of  the 
property,— in  substance,  diminution  of  its  mar- 
ket value.  Tliat  sugsested  the  proper  inquiry, 
and  would  be  the  proper  measure  of  compen- 
sation in  any  proceeding  to  acquire  title  or 
lix  compensation  for  an  unwilling  vendor. 
The  evidence  was  directed  to  that  end.  The 
charge- of  the  judge  gave  that  question  to  the 
jury  as  the  only  one  which,  when  answered, 
was  to  determine  the  amount  of  damages. 
The  complaint  shows,  indeed,  as  consequent 
upon  d(>fenuant's  act,  not  only  that  water  has 
been  directed  into  the  basements  of  the  houses, 
but  that  they  ai'e  th^i-eby  "made  liable  to  be 
Hooded";  and  as  consecpient  upon  that  and 
other  effects,  depreciated  in  value.  That  was 
the  subject  of  the  action.  The  other  things 
were  simply  its  ingredients,  not  independent 
or  of  themselves  causes  of  action,  but  mere 
effects  of  the  act  complained  of.  resulting  in 
diminution  of  value  to  the  property,  for  which 
alone  damages  were  demanucd  and  given. 
The  record  shows  these  things,  and  that  the 
adjudication  covered  all  damages  prospectiv(> 
as  well  as  past  that  might  be  sustained  by  the 
plaintiff  by  reason  of  the  act  of  the  defend- 
ant. 

The  appellant  cites  various  cases  in  support 
of  a  contrary  view;  but  I  think  them  in- 
applicable. So  far  as  those  from  the  courts 
of  this  state  are  concerned,  they  relate  to 
acts  which  obviously  were  or  might  be  of  a 
temporary  and  not  permanent  character. 
The  Mahon  Case,  24  N.  Y.  658,  was  of  the 
former  class.  It  was  considered  in  the  Hen- 
derson Case,  supra,  and  thought  to  be  no  ob- 
stacle in  the  way  of  allowing  complete  and 
final  damages  where  the  act  causing  injury 
was  necessarily  permanent.  In  other  states 
the  courts  differ.  The  appellant  cites  the 
Carl  Case,  46  Wis.  62.^.  1  N.  W.  29.5;  but 
on  the  other  hand  are  Town  of  Troy  v. 
Cheshire  E.  Co.,  23  N.  H.  83.  quoted  in  the 
Henderson  Case,  supra,  435;  Powers  v.  City 
of  Council  Bluffs,  45  Iowa.  652;  Railroad  v. 
Grabill,  50  111.  241.  Still  others  are  cited  by 
the  respondent.  It  cannot  be  necessary  to 
refer  to  them. 

The  concession  of  the  appellant  is,  in  sub- 
stance, that  the  correct  measure  of  damages 
was  adopted,  provided  the  defendant  is  se- 
cure against  further  interference  by  the  plain- 
tiff, as  it  was  in  Henderson's  Case,  supra. 
The  struggle,  then,  is  over  the  form  of  the 
action.  There  is  little  in  it.  The  defendant 
has,  and  will  have  during  its  corporate  life, 
the  enjoyment  of  the  premises,  and  the  plain- 
tiff will  have  been  paid  for  its  surrender. 
Nothing  more  could  have  been  secured  by 
either,  whether  by  statutory  proceedings  or 
by  suit  in  equity. 

The  next  question  arises  on  the  new  matter 
set  up  by  the  defendant  as  a  defense,  viz.. 
that  one  Sarah  Wallace,  the  plaintiff's  moth- 
er, was  in  possession  of  the  premises,  claim- 


ing to  be  owner  at  the  time  of  the  act  com- 
plained of,  and  that  she  agreed  with  the  <le- 
fendanl  to  receive  $.500,  in  full  settlement 
therefor,  and  for  a  general  release,  and  that 
this  sum  was  in  fact  paid  to  her  on  the 
thirtieth  of  September,  1875,  in  the  presence 
of  one  De  Pfuhl;  and  alh'ged  that,  in  exe- 
cuting it,  Mrs.  Wallace  acted  in  behalf  and 
by  the  authority  of  tlie  plaintiff.  These 
things  were  controverted.  The  name  of  ^Irs. 
Wallace  was  alleged  to  be  a  forgery,  and 
that  no  money  was  received  by  her,  and 
whether  it  was  or  not  Avas  made  the  imnor- 
tant  (luestion  upon  the  trial.  Among  other 
things,  the  defendant  gave  in  evidence  a 
check  made  by  it  on  the  Chemical  Bank  for 
$500  payable  "to  the  order  of  Sarah  Wal- 
lace." This  purported  to  be  indorsed  "S. 
Wallace,"  then  by  De  Pfuhl  as  second  in- 
dorser.  and  after  him  by  Wendell,  cashier,  to 
the  Fourth  National  Bank  of  New  York,  or 
order.  There  was  no  direct  evidence  either 
that  Mrs.  Wallace  signed  the  receipt,  or  in- 
dorsed or  received  the  check.  De  Pfuhl  was 
a  lawyer  by  profession,  and,  at  the  times  in 
question,  in  the  employ  of  the  defendant, 
"in  the  Iaw%  real-estate,  and  claim  depart- 
ment." His  testimony  was  taken  in  1S80, 
but  his  recollection  of  the  events  was  slight 
and  imperfect.  He  said  he  had  many  inter- 
views with  Mrs.  Wallace  on  the  subject  of 
settlement,  but  could  recall  nothing  said  "by 
her,  by  himself,  or  any  one  else."  He  had 
no  recollection  of  seeing  Mrs.  Wallace  sign 
the  receipt,  but  had  no  doubt  the  signature 
to  it  of  his  name  as  witness  was  geiuiine. 
adding:  "I  have  no  recollection  of  seeing 
Sarah  Wallace  sign  that  paper,  but  I  have  no 
doubt  that  she  (lid,  from  the  fact  of  my  wit- 
nessing her  signature.  The  body  of  the  pa- 
per is  in  my  own  handwriting.  I  cannot 
remember  anything  about  the  drawing  or 
execution  of  this  paper."  Being  shown  the 
check,  he  said:  "I  believe  the  name  'Francis 
De  Pfuhl,'  on  the  back  of  this  check,  is  in 
my  handwriting.  I  have  no  doubt  that  Mrs. 
Sarah  Wallace  wrote  the  name  'S.  Wallace' 
on  the  back  of  this  check.  I  have  no  recol- 
lection about  this  check  being  cashed  at  any 
bank  in  the  city  of  Albany.  I  do  not  know 
who  had  the  money  on  said  check.  I  have 
no  recollection  of  anything  fui'tlier  in  regard 
to  said  check." 

Witnesses  for  plaintiff,  qualitied  to  speak, 
discredited  the  genuineness  of  the  signature 
purporting  to  be  that  of  Mrs.  Wallace.  The 
plaintiff  testitied  that  she  went  with  her 
mother  a  number  of  times  to  the  defendant's 
office  about  the  damage,  and  always  when 
her  mother  went  she,  "so  far  as  she  knew," 
was  with  her;  shows  an  offer  of  $500.  and 
its  rejection,  and  other  circumstances  indicat- 
ing efforts  to  compromise,  but  failure  to  do 
so;  and  that  she  first  heard  it  claimed  that 
any  money  had  been  paid  when  it  was  set 
up  by  the  defendant's  answer.  In  1875  her 
mother  was  65  years  old.  and  they  lived  to- 
gether  during   her   life.     She    kept   bank-ac- 


108 


PKESENT  AND  l'K<  »srECTi\'E  DAMAGES. 


oouuts   then   and  for   some   years   before,    at 
the  F.  &  M.  Bank,  and  at  the  Albany  Sav- 
ings Bank.     Her  bank-lK)oks  were  produced 
by  the  witness.     These  were  all  her  mother 
had.     It    was   her    habit   to    deposit    all    her 
rents  and  other  money  to  these  accounts,  so 
far  as  witness  knew.     She  kept  but  a  tritiing 
sum  of  money  by  her  at  any  time,  and  had 
no  expenses  except  those  known  to  witness, 
nor  debts,  nor  any  business  transaction  call- 
ing   for   $500,    or   any    such     sum.     Witness 
knew  all  her  business  transactions,   and  to 
her  knowledge  she  did  not  have  any   such 
sum  of  money  as  $500  in  1875,   or   at  any 
subsequent  period;    nor  at  the  time  of  her 
death,  in  1877,  did  she  have  any  money  what- 
ever in  the  house.     The  bank-accounts   ran, 
in  one  case  from  1S70,  and  in  the  other  from 
1SG9,  both  to  1877,  and  the  accuracy  of  the 
pass-books  was  proven  by  officers  of  the  dif- 
ferent banks.     The  pass-books  were  then  of- 
fered  in  evidence,   against   the   objection  of 
the    defendant.     The    exception    then    taken 
raises  the  second  point  made  by  the  appel- 
lant.    In  its  support  the  learned  counsel  cites 
the  case  of  Carroll  v.  Deimel,  95  N.  Y.  252. 
There  the  matter  of  "no  deposit"  in  the  bank 
v,-as  brought  out  as  an  independent  and  isolat- 
ed fact.    As  such  it  had  no  legal  tendency  to 
prove  the  issue.     Here  it  takes  its  place  in 
the  affairs  of  Mrs.  Wallace,  and.   combined 
with  other  circumstances   in   evidence,   was 
proper  for  the  consideration  of  the  jury.    Of 
itself  it  proved  nothing;    but  when  her  con- 
duct in  the  disposition  of  money  was  shown; 
when  it  appeared  that  her  habit   was   uni- 
form in  regard  to  it;    that  she  incurred  no 
debts;    kept  little  money  about  her,  but  uni- 
formly placed  such  as  she  received  in  one  of 
two  banks,— it  would  permit  an  inference  that 
so  large  a  sum  as  $500  would  have  gone  in 
that  direction  had  she  received  it;    and  if  not 
found  there,  that  fact  might,  with  other  cir- 
cumstances,   bear  upon   the   question   of   its 
receipt.     True,  she  might  have  received  and 
lost   it,    or   otherwise   disposed   of   it.     That 
was  also  to  be  weighed  by  the  jury.     It  was 
part  of  the  defense  that,  with  knowledge  of 
the  plaintiff:  and  in  her  behalf,  the  claim  for 
damages   had  been  settled   and   paid   for   to 
Mrs.  Wallace.     How  was  this  to  be  disprov- 
ed?    The  plaintiff  had  not  received  the  mon- 
ey.    Sarah    Wallace    was    dead,     flight    not 
the  tenor  of  her  conduct  be  shown?     Would 
not  the  fact  that,  after  the  time  of  the  al- 
leged payment,  she  was  or  was  not  possessed 
of  a  sum  of  money  of  that  or  about  that 
amovmt,  otherwise  unaccounted  for,  be  rele- 
vant?    It  seems  to  be  so.     A  state  of  things, 
then,  which  gives  an  opportimity  to  show  it 
in  her  possession  at  that  time,  or  to  show 
that  it  was  not  in  her  possession,   may  be 
proved;   and,  as  her  habit  of  business  was  to 
deposit  money  received  in  one  or  the  other 
bank,  information  as  to  that  fact  must  also 
be  relevant.     The  defendant  says  the  money 
was  paid.     The  evidence  tends  to  show  that. 
if  paid,  it  would  have  been  deposited.     That 


it  was  not  deposited,  therefore,  is  inconsist- 
ent with  its  receipt,  and  is  pertinent  evidence 
that  it  Avas  not  paid.  The  conduct  of  Mrs. 
Wallace  at  that  time  may  speak,  although 
she  is  unable  to.  What  she  did  or  what  she 
did  not  do,  and  even  her  omission  to  mention 
the  receipt  of  monej-  to  her  daughter,  the 
plaintiif,  for  whom  the  defendant  assumes 
she  acted,  and  to  whom,  therefore,  it  would 
have  been  natural,  if  not  her  duty,  to  men- 
tion it  if  made,  also  has  a  bearlug  upon  the 
question  whether  payment  was  in  fact  made. 

Notwithstanding  the  evidence  of  De  Pfuhl 
as  to  the  signature  to  the  release,  and  the 
indorsement  of  the  draft  in  the  name  of  Mrs. 
Wallace,  it  was  conceded  bj'  the  defendant 
that  neither  signature  was  made  by  her.  The 
claim  upon  this  trial  was  that  it  was  made 
by  Mrs.  Tline,  the  plaintiff,  and  the  court 
charged  the  jury  to  inquire  whether  Mrs. 
Uline  did  write  those  names,  and  whether 
"the  $500  was  paid  to  either,  or  paid  as  they, 
or  either  of  them,  directed  the  moupy  to  be 
paid.  If  Mrs.  Uline,"  he  said,  "sigusnl  the 
name  of  Mrs.  Wallace  to  those  papers,  and 
tlie  $500  has  been  paid,  then  she  cannot  re- 
cover. If,  on  the  other  hand,  she  did  not 
sign  the  papers,  or  if  she  did  sign  them,  and 
the  $500  has  not  been  paid  either  to  her  or 
to  her  mother,  or  to  such  persons  as  she  or 
either  of  them  directed  it  to  be  paid,  then 
she  can  recover,  and  should  recover  such 
damages  as  you  find  the  property  has  been 
injured  by  the  act  of  the  defendant."  And 
later  on,  after  presenting  the  evidence  in  a 
manner  satisfactory  to  both  parties,  the 
learned  judge  said:  "If  you  find  that  Mrs. 
Uline  did  sign  the  receipt,  and  did  indorse 
the  check  in  her  mother's  name,  and,  further, 
that  either  she  or  her  mother  received  the 
money,  or  it  was  paid  to  some  person  to 
whom  they  directed  it  to  be  paid,  then  your 
verdict  must  be  for  the  defendant." 

There  was  no  exception  to  the  charge  in 
any  respect,  but  at  its  close  the  counsel  for 
the  defendant  asked  the  court  to  charge  "that 
if  Francis  De  Pfuhl  received  the  money  on 
the  check  under  Mrs.  Wallace's  indorsement, 
and  at  her  request,  in  so  doing  he  acted  as 
her  agent,  and  the  payment  to  him  was  a 
IKiyment  ,to  Mrs.  Wallace."  And  the  court 
replied:  "If  she  made  him  her  agent  for  the 
purpose  of  receiving  the  money  for  her.  just 
as  you  requested,  then  the  loss  would  be 
hers,  and  not  the  loss  of  the  company.  If, 
however,  De  Pfuhl,  acting  in  behalf,  or  pro- 
fessedly acting  in  behalf,  of  the  company, 
proposed  to  her,  if  she  would  sign  her  name 
to  the  papers,  he  would  go  and  get  the  money 
for  the  purpose  of  completing  the  arrange- 
ment with  her,  and  woidd  return  her  the 
money,  then  I  think  that  the  loss  will  be  the 
loss  of  the  company,  and  not  the  loss  of 
Mrs.  Uline  or  Mrs.  Wallace." 

It  was  not  suggested  by  the  defendant  that 
the  evidence  would  not  warrant  a  finding  in 
either  alternative.  The  charge  requested 
was  given.     There  was  no  refusal.     It  was 


PliESENT  AND  I'JtUSl'KCTlVE  DAMAGES. 


1U9 


not  error  to  state  to  the  jury  the  law  upou 
the  other  stale  of  facts.  The  rc(iuest  "that 
if  De  rfiihl's  iiulorsemeut  on  the  draft  raises 
any  presumption  that  he  roeeived  tlie  money 
on  it,  the  legal  inference  is  that  he  so  re- 
ceived it  for  and  on  accoinit  of  Airs.  Wal- 
lace, the  payee,  and  that  ilir  money  so  re- 
ceived by  him  \v;)s  a  ii;i\inrnl  to  Mrs.  Wal- 
lace, if  her  indorsement  \v;is  j^enuine,"  was 
not  unlike  the  oue  refi'rred  to.  and  was  well 
disposed  of.  The  court  had  already  chiirgeil 
upon  the  question  as  affiM-ted  by  the  indorse- 
ment, and  could  not.  in  view  of  the  conces- 
sion and  course  of  trial.  l»e  reijuired  lo  svd)- 
mit  any  proposiiiou  to  the  jury  whicli  as- 
sumed that  the  signature  purporting  to  be 
that  of  Mrs.  Wallace  was  genuine.  Hut  if 
the  request  be  treated  as  implying  also  that 
the  sigiijiture  was  by  her  authority,  then  the 
conn  properly  answered  it.  Amplifying 
wii.it  in  substance  had  l)een  twice  stated,  he 
declined  to  i):iss  directly  upon  that  question, 
saying:  "I  think  it  depends  upon  how  tlie 
jtiry  tiiid  upon  that  fact.  If  Mrs.  I'line  or 
Mrs.  Wallace  wished  this  man  to  obtain  the 
money  upon  this  check  for  them,  and  desired 
him  to  go  to  the  bank  for  their  benefit 
;ind  draw  the  money,  then,  if  he  used  the 
money  ;ind  misaiiplied  ft,  it  would  not  be  the 
loss  of  the  company.  If.  however,  De  Pfuhl, 
professing  to  act  for  his  employer,  the  de- 
fendant, i)roposed  to  her  that  he  would  ob- 
tain the  money  for  her  in  order  that  the 
transaction  might  be  completed,  nnd  she,  un- 
der those  circumstances,  put  her  name  upon 
lite  paper,  and  sent  him  to  the  bank,  then 
she  would  not  be  chargeable  with  the  loss  of 
the  money  if  De  Pfuhl  did  not  pay  it  over;" 
adding:  "As  both  of  tliese  theories  are  con- 
sistent with  the  api>earauce  of  the  pajier.  I 
cannot  say  as  matter  of  law  that  either  one 
is  the  presumptive  one  upon  the  mere  face 
of  the  papers."  There  was  no  error  in  this. 
Nor  was  it  claimed  that  the  learned  trial 
judge  either  misstated  the  evidence,  or  tlie 
lindings  which  it  would  support.  The  court 
caimot  be  conliued  to  a  single  abstract  projio- 
sition,  but  might,  and  it  was  its  duty  to. 
submit  to  the  jury  in  its  discretion  such  topics 
as  either  bore  upon  or  were  in  that  connec- 
tion worthy  of  their  attention. 

The  other  exceptions  have  been  examined. 
They  point  to  no  error.  The  issties  were 
carefully  tried,  and  we  think  the  judgment 
rendered  upon  the  verdict  should  stand.  It 
is  therefore  aftirmed. 

NOTE.  In  Hargreaves  v,  Kimberly,  2fi  W. 
Va.  787,  the  court,  after  disposing  of  other 
matters,  said: 

It  is  also  assigned  as  error  that  the  court  i)or- 
luitted  the  witness  Butterfield  to  give  his  opin- 
ion,as  to  the  amount  of  damage  the  plaintiffs 
had  suffered  by  the  acts  of  the  defendant;  and 
Yost  V.  Coiiroy,  92  lud.  4G4.  is  cited.  It  is  there 
held,  that  the  opinion  of  a  witness  as  to  the  dam- 
.•ige  a  ditch  would  cause  to  the  lands  of  a  party 
is  not  proper  evidence.  Elliot,  T.,  delivering  the 
opinion  of  the  court,  says:  "Opinions  of  wit- 
nesses as  to  the  amount  of  benetit  or  damage 
snst.iined   by  a  party  are  not  competent."      He 


cites  a  line  of  Indiana  decisions  to  .sustain  him, 
and  further  says:  "It  may  well  be  held,  that 
these  cases  declare  the  general  rule  correctly, 
since  to  hold  otherwise  would  lie  to  put  llie  wit- 
nesses in  the  place  of  the  jurors,  and  conunit  to 
them  the  amount  ot  the  re<-oveiy.  A  contrary. doc- 
trine would  also  violate  tlie  rule,  that  witness(>s 
c;iiniot  c.xiiress  an  ojiiuion  u|ion  the  precise  point, 
\vhich  the  issues  present  for  tlie  decision  of  the 
jury."  But  the  learned  court  (lid  hold  in  that 
case,  that  "the  oitinion  of  one  acquainled  witli 
the  iiroperty  as  to  its  value  witli  and  without  I  lie 
ditch  is  proper  evidiMice."  Now,  it  seems  to 
UH',  that  it  is  a  A'cry  ince  distinction.  If  the 
witness  testities.  that  the  ju-operty  is  wortti 
.$1.()(M*  without  the  ditch  and  S;,S(MI  with  the 
ditch,  lias  he  not  given  liis  opinion,  that  tin- 
laud  was  damaged  just  .$2(lb".'  Why  may  the 
enqiiiry  not  at  once  be  made:  "'How  much  is 
the  land  injured  by  the  ditch V"  If  he  answers 
•1^200.  then  can  not  all  his  reasons  for  his 
opinion  bo  elicited  on  cross-exaininatiouV  In 
Snow  V.  Railroad.  G.j  Me.  230.  it  is  held,  that 
when  the  value  of  real  estate  taken  for  a  rail- 
road, or  the  amount  of  damage  caused  liy  such 
taking  is  in  question,  jiersons  ac(piainti'd  with 
it  may  state  tlieir  oi)inions  as  to  its  value,  or 
:is  to  the  amount  of  damage  done,  if  all  is  not 
taken.  In  A'andino  v.  Burpee,  13  Mete.  (.Mass.) 
288.  a  case  much  like  this,  it  appeared,  that 
on  the  trial  of  an  action  to  recover  d:images 
for  injury  done  to  the  plaintiff's  garden  and 
nursery  by  the  smoke,  heat  and  gas  proceeding 
from  the  defendant's  brick  kiln,  after  two  gar- 
deners, who  had  much  experience  in  raising 
and  cultivating  fruit  trees,  shrubs  and  plants, 
had  testified  to  the  particulars  of  the  plaintiff's 
injury,  they  were  ask(Ml  by  the  plaintiff.  ••Whr.t 
was  the  amount  of  damage"  caused  by  the  in- 
jury, to  which  they  had  before  testified:  and 
it  was  held  that  these  witnesses  might  give 
their  opinion  as  to  the  amount  of  such  dam- 
age. Dewey,  J.,  said:  "It  seems  to  us  that  it 
would  be  impracticable  to  dispense  Avitli  this 
species  of  testimony  in  many  actions  of  trover 
for  personal  property,  where  no  detail  of  facts 
could  adequately  inform  the  jury  of  the  value 
of  the  articles.  The  opinion  of  a  witness  as 
to  the  value  of  a  horse  is  much  more  satisfac- 
tory evidence  than  a  detailed  statement  of  his 
size,  color,  age.  &c..  to  give  the  jury  the  req- 
uisite inform:! tion  to  enable  them  to  assess 
damages  for  the  conversion  of  such  a  horse." 

In  Railroad  Co.  v.  Foreman.  2-t  W.  Va.  662, 
it  was  held,  that  such  evidence  was  admissi- 
ble. The  court  in  that  case  saiil.  by  (ireen,  .1.-. 
"There  is  no  objection  to  taking  the  opinion 
of  witnesses  as  to  either  the  amount  of  dam- 
ages or  as  to  the  amount  of  the  benefit.  It  is 
the  usual  practice  in  this  state  and  Virginia." 
He  cites  a  number  of  pertinent  authorities  to 
sustain  the  position. 

But  the  court  did  err  in  permitting  the  wit- 
ness against  the  objecti(ui  of  the  defendant's 
connsei  to  answer  the  following  (piestion: 
"State  if  you  can  what  will  he  the  probable 
damage  tliat  will  occur  in  the  future  from 
what  has  already  been  done  to  the  run  in  the 
way  of  digging,  or  chaiiiring  its  course'.''''  The 
witness  answered,  defendant  excepting  to  ques- 
tion and  answer:  "Well  it  is  pretty  hard  for 
me  to  .'Uiswer  the  question  as  to  the  amount  of 
damage,  but  I  think  it  will  be  considerable, 
provided  the  water  course  is  left  in  the  same 
condition  it  is,  because  it  is  washing  out  nat- 
urally right  against  the  bank:  and  if  it  had 
been  left  full  up  level  to  the  road  where  the 
water  used  to  go.  of  course  the  bank  would 
have  held  up.  This  has  took  half  the  lot 
away;  but  the  prospect  is  there  will  he  a 
great  deal  of  slips  there  with  the  run."  Why 
this  evidence  was  offered  I  do  not  understand. 
The  counsel  for  the  defendant  in  error  in  his 
brief  says:  "The  plaintiffs  were  unquestiona- 
bly entitled  to  recover  in  this  .action  the  dam- 
ages which  were  likely  to  occur  in  the  future 
as   Avell   as   those  which   had   already  occurred 


HO 


rUKSKNT  AM>    I 'Ui  »S1 'KC'il  VK  1>AMA(JE.S. 


in  th(>  past."  He  cites  no  authority,  ueitlier 
does  he  present  any  arf,Miment.  It  seeuis  to  me 
tliat  both  reason  and  authority  are  ajrainst  his 

' "fn  Siii'ith  V.  Railroad,  23  W.  Va.  453.  Green, 
.T.,  said:  "Where  the  damage  is  of  a  perma- 
nent eliaracter,  and  aiTects  the  value  of  the  es- 
tate, a  recovery  may  be  had  at  law  of  the  en- 
tire damages  in  one  action;  but  where  the  ex- 
tent of  the  wrong  may  be  apportioned  from 
time  to  time,  separate  actions  should  be 
brought  to  recover  the  damages  sustained.  He 
cites  Trov  v.  Raili-oad  Co.,  23  N.  H.  101; 
Turnpike  "Co.  v.  Stevens.  13  N.  H.  28:  Parks 
V.  ritv  of  Boston.  1.")  Pick.  198;  Blunt  v.  Mc- 
<"ormiVk.  .3  Denio.  283;  Thayer  v.  Brooks.  17 
Ohio.  ISit;  Anon..  4  Dall.  147;  Tucker  v.  New- 
man. 11  Adol.  &  E.  40. 

In  Thayer  v.  Brooks,  supra,  the  action  was 
case  for  nuisance  in  diverting  the  water  from 
the  iiiill  of  the  defendant  in  error,  and  the 
court  held  that  the  rule  of  damages  in  an  ac- 
tion for  nuisance  is  the  injury  actually  sustain- 
ed at  the  commencement  of  the  suit. 

In  Blunt  V.  McCormick.  supra,  the  court 
said:  "The  rule  of  damages  laid  down  by  the 
court  was  erroneous.  In  this  action  the  plain- 
tiff could  only  recover  for  injuries  actually  sus- 
tained before  suit  was  bi-ought.  ^  and  not  for 
supposed  prospective  damages.  Supposing  the 
lease  to  contain  a  covenant  not  to  obstruct  the 
light,  and  the  action  to  have  been  brought  on 
such  covenant,  the  rule  of  damages  would  be 
otherwise,  for  the  covenant  being  a  single 
cause  of  action,  one  recovery  on  it  would  be  an 
absolute  bar  to  any  future  action.  But  a  re- 
covery in  an  action  on  the  case,  for  obstructing 
the  light  prior  to  the  time  when  the  action 
was  commenced  would  not  bar  a  future  suit 
for  the  continuance  of  the  same  injury." 

In  Turnpike  Co.  v.  Stevens,  supra,  it  was 
held,  that  where  an  action  on  the  case  was 
brought  to  recover  damages  for  laying  out  a 
highway  around  a  turnpike  gate,  so  as  to  di- 
vert the  travel  from  the  turnpike,  and  dam- 
ages were  recovered   for  the  loss  of  toll  occa- 


sioned by  the  opening  of  the  highway  to  the 
date  of  the  plaintiff's  suit,  subsequent  suits 
might  be  maintained  for  further  damage  ac- 
cruing from  time  to  time,  as  long  as  the  high- 
way was  kept  open.  A  recf)very  had  lieen  had 
before  for  dividing  the  tolls,  and  it  was  insist- 
ed that  no  action  could  be  maintained  for  oon- 
tiu nance  of  the  road  after  recovery  bad  been 
once  had  for  the  opening  of  the  way.  But  Up- 
ham,  J.,  for  the  court,  said:  "This  is  erroneous. 
The  cause  of  action  remains  so  long  as  the 
cause  of  the  injury  is  upheld  by  the  defendant. 
It  has  been  in  the  defendant's  power  at  any 
time  to  discontinue  the  grievance  complained 
of.  and  so  long  as  this  power  remains  it  would 
be  unjust  to  "visit  him  with  damages  except 
during  the  actual  time  the  damage  has  been 
sustained.  The  injury  is  not  necessarily  per- 
manent in  its  character,  and  recovery  therefor 
can  only  be  had  for  the  past,  as  it  may  cease 
at  any  moment.  The  injury  is  of  the  same 
character  as  that  arising  from  a  nuisance,  and 
is  subject  to  the  same  rule  of  law." 

It  seems  to  me  that  in  all  those  cases,  where 
the  cause  of  the  injury  is  in  its  nature  perma- 
nent, and  a  recovery  for  such  injury  would 
confer  a  license  on  the  defendant  to  continue 
the  cause,  the  entire  damage  may  be  recovered 
in  a  single  action;  but,  where  the  cause  of  the- 
injury  is  in  the  nature  of  a  nuisance  and  not 
permanent  in  its  character,  but  of  such  a 
character  that  it  may  be  supposed,  that  the 
defendant  would  remove  it,  rather  than  suffer 
at  once  the  entire  damage,  which  it  might  in- 
flict, if  permanent,  then  the  entire  damage 
can  not  be  recovered  in  a  single  action;  but  ac- 
tions may  be  inaintahied  from  time  to  time, 
as  long  as  the  cause  of  the  injury  continues. 
Here  the  cause  may  be  removed,  and  it  is  sup- 
posed will  be  by  the  defendant,  rather  than 
submit  to  having  the  entire  damages  recovered 
against  him.  for  a  permanent  injury,  or  to  suf- 
fer repeated  recoveries  as  long  as  the  cause 
of  the  injury  continues.  The  court  erred  in 
admitting  this  evidence,  and  for  this  reason 
the  judgment  will  have  to  be  reversed. 


PltHSENT  AM)   l'K()Sri:( TINIO  DAMAfJKS. 


Ill 


STODGHILL  v.  CHICAGO,  B.  &  Q.  R.  CO. 

(5  N.  W.  495,  5;j  Iowa.  ;U1.) 

Supreme  Court  of  Iowa.      Ainil  U'o.    IS.SO. 

Appeal  from  circuit  court.  Wapi'ilo  cauuty. 

Christopher  Sto(ls;liill  was  the  owucr  of  a 
farm  of  some  4.S(I  acres  in  Wapi'Uo  county. 
Part  of  said  farm  consisted  of  a  tract  of  2!» 
acres  of  creelv  or  pasture  land.  'rh(>  defend- 
ant's rifrht  of  way  for  its  railroad  was  located 
along  the  north  line  of  said  tract.  The  nat- 
in-al  channel  of  North  Avery  creek  ran  across 
the  right  of  way  upon  said  tract,  meandered 
through  it,  and  recrossed  the  north  line  of 
1h(>  land  and  the  right  of  way.  When  the 
railroad  was  constructed,  bridges  were  built 
across  the  creek  which  spanned  the  channel 
and  did  not  obstruct  the  passage  of  the  water 
in  the  stream,  nor  divert  it  from  where  it 
AA-as  wont  to  flow.  In  1874  the  defendants 
cut  a  channel  on  the  north  side  of  their  right 
of  way  and  filled  in  the  bridge  where  the 
stream  entered  plaintiffs  land  with  earth, 
Avhich  diverted  the  stream  into  the  new  chan- 
nel entirely,,  "except  as  the  water  backed 
through  a  culvert  at  a  point  Avhere  the  water 
recrosses  the  right  of  way;  the  said  bridge 
at  the  last  named  point  having  been  previ- 
ously removed,  a  culvert  there  constructed, 
and  the  stream  tilled  in  at  this  point,  except 
tlie  culvert  aforesaid." 

Christopher  Stodghill  commenced  an  action 
against  the  defendant  for  damages  to  his  land 
by  reason  of  the  diversion  of  the  stream. 
He  recovered  a  verdict  and  judgment  for  one 
dollar  and  costs.  The  cause  was  affirmed 
upon  appeal  to  this  court.  See  Stodghill  v. 
Railroad  Co.,  43  Iowa,  26.  Said  Stodghill 
died  in  the  year  1876.  and  by  his  last  will 
and  testament,  which  was  duly  admitted  to 
l)robate,  he  devised  the  said  21>  acres,  with 
other  of  his  lands,  to  the  plaintiff.  This  ac- 
tion was  commenced  in  February,  1877,  to  re- 
<-over  damages  for  continuing  to  divert  the 
water  from  the  natural  channel  of  said  creek, 
and  for  a  judgment,  directing  the  abatement 
and  removal  of  the  embankments  in  the  origi- 
nal channel.  There  was  a  trial  by  the  court, 
without  the  intervention  of  a  jury,  and  a 
judgment  was  rendered  for  plaintiff  for  one 
<liillar  actual  damages,  and  .$7."'>  exemplary 
damages,  and  an  order  was  made  requiring 
the  defendant  to  abate  and  remove  said  ob- 
structions from  the  natural  channel  of  the 
creek.     Defendant  appeals. 

Stiles  &  Lathrop.  for  appellant.  Wm.  Mc- 
Nett  and  H.  B.  Ilendershott.  for  api)i'llee. 

ROTHROCK,  .T.  1.  AVhen  the  earth  was 
deposited  in  the  channel  of  the  creek,  and 
laised  to  a  sntticient  height  to  cover  over  the 
bridge,  and  make  a  solid  embankment  upon 
which  to  lay  the  railroad  track,  the  water  in 
the  creek  was  at  once  turned  into  the  new 
channel.  The  principal  (luestion  in  the  case 
is  Avhether  the  judgment  for  damages,  in  fa- 
vor of  Christopher  Stodghill.  Avas  a  full  adju- 
dication for  all  injuries  to  tlie  land,  not  only 


up  to  the  commencement  of  that  suit,  but  for 
all  lli.at  might  thc^reafter  arise. 

In  Towers  A'.  City  of  Council  Hluffs.  45 
Iowa,  (!.">2,  the  question  being  as  to  what  is 
a  perm.anent  nuisance,  it  was  held  that  wdiere 
it  was  of  such  a  character  tliat  its  continu- 
ance is  necessarily  an  injiny,  and  that  when 
it  is  of  a  permanent  character,  that  Avill  con- 
tinue Avithout  ch;inge  from  any  cause  but 
human  labor,  the  damage  is  original,  and 
may  be  at  once  fully  estimated  and  compen- 
sated; that  successive  actions  Avill  not  lie, 
and  that  the  statute  of  limitations  commences 
to  run  from  the  time  of  the  commencement 
of  the  injury  to  the  proiierty.  That  Avas  a 
cause  where  the  plaintiff  sought  to  recoA'er 
damages  against  the  city  for  diverting  the 
natural  channel  of  a  sti-eam  called  Indian 
creek  by  excavating  a  ditch  in  a  street  in 
such  a  manner  that  it  widened  and  deepened, 
by  the  action  of  the  Avater,  so  as  to  injui-e 
plaintiff's  lot  abutting  upon  said  street.  Tlie 
same  rule  Avas  recognized  in  ToAvn  of  Troy 
V.  Cheshire  R.  Co.,  3  Fost.  (X.  H.)  83.  In 
that  case  the  defendant  constructed  the  em- 
bankment of  its  railroad  upon  a  part  of  ;i 
higliAA'ay.  The  action  Avas  by  the  toAvn  to 
recoA'er  damages.  The  plaintiff  claimed  that 
it  Avas  entitled  to  recover  for  the  entire  dam- 
ages for  the  permanent  injury.  The  court 
said:  "The  railroad  is,  in  its  nature,  design 
and  use,  a  permanent  structure.  Avhich  can- 
not be  assumetl  to  be  liable  to  change.  The 
appropriation  of  the  roadAvay  and  materials 
to  the  use  of  the  railroad  is  therefore  a  per- 
manent diversion  of  that  property  to  that  neAv 
use,  and  a  permanent  dispossession  of  the 
town  of  it  as  the  place  on  which  to  main- 
tain a  highway.  The  injury  done  to  the  toAvn 
is,  then,  a  permanent  injury,  at  once  done 
by  the  construction  of  the  railroad,  Avhich  is 
dependent  upon  no  contingency  of  Avhich  the 
law  can  take  notice,  and  for  the  injury  thus 
done  to  them  they  are  entitled  to  recover  at 
once  their  reasonable  damages." 

The  case  at  bar  is  a  much  stronger  illustnv 
tion  of  what  is  a  permanent  nuisance  or  tres- 
pass, for  which  damages,  past,  present  and 
prospective,  may  be  recovered,  than  Powers 
V.  City  of  Council  Bluffs.  In  this  case  the 
damages,  to  the  Avhole  extent,  were  at  once 
apparent.  The  water  Avas  diverted  from  the 
natural  channel  as  soon  as  the  embankment 
Avas  raised  to  a  sufficient  height  to  turn  the 
current  into  the  new  channel.  The  injury  to 
the  land  AA'as  then  susceptible  of  estimation, 
as  it  ever  afterAvards  could  be,  and  without 
calculating  any  future  contingencies.  In  tlie 
other  case,  Avhen  the  Avater  commenced  to 
floAA'  in  the  neAV  channel,  the  plaintiff's  lots 
Avere  not  injured.  It  reiiuired  time  to  Avash 
aAvay  the  banks  and  Avork  backAvard  before 
the  injury  commenced.  It  is  not  necessary 
to  dwell  upon  this  question.  The  rule  estab- 
lished in  Powers  v.  City  of  Council  Bluffs, 
supra,  is  decisive  of  the  case.  See.  also,  Rail- 
road Co.  V.  Maher  (Sup.  Ct.  111.)  Chi.  Leg. 
N.  July  5,   1879.     Counsel  for  appellees  con- 


112 


PRESENT  AND  PROSrECTlVE  DAMAGES. 


teiul  that  the  raHroad  embaukmeut  is  not  per- 
manent, because  it  is  liable  to  be  -washed  out 
by  freshets  in  the  stream,  and  cannot  stand 
witliout  being  repaired. 

Tliere  is  no  evidence  in  this  record  tending 
to  show  that  the  embankment  is  insutticient 
to  accomplish  the  piu'pose  for  which  it  was 
erected:  that  is,  to  make  a  solid  railroad 
track  and  divert  the  water  into  the  new 
vhaunel.  One  witness  testified  that  it  is  from 
1<;  to  18  feet  high.  We  will  not  presume  that 
<l(^tendant  Avas  guilty  of  such  a  want  of  en- 
giiieeriug  skill  as  not  to  raise  its  embank- 
ments so  that  they  will  not  be  affected  by 
high  water.  It  seems  to  us  that  a  railroad 
embankment  of  proper  width,  and  raised  to 
tlie  proper  height,  is  about  as  permauent  as 
anything  that  human  hands  can  make.  Be- 
fore leaving  this  branch  of  the  case,  it  is 
pi'oper  to  say  that  the  acts  complained  of 
were  done  within  the  limit  of  tlie  defendant's 
right  of  way,  and  the  injury,  if  any.  to  the 
plaintiff's  land  was  consequential.  The  de- 
fendant did  not  enter  upon  plaintiff's  land  to 
take  a  right  of  way  for  its  railroad,  and 
Christopher  Stodglull  did  not  bring  his  action 
to  recover  upon  that  ground.  As  we  have  a 
statute  providing  for  proceedings  to  condemn 
the  laud  necessary  to  be  taken  for  right  of 
way  foi-  railroad  purposes,  it  may  be  that  the 
mode  of  ascertaining  the  damages  prescribed 
by  the  statute  must  be  pursued.  See  Daniels 
V.  Railroad  Co.,  35  Iowa.  129.  That  (piestion 
is  not  in  this  case,  aud  we  only  refer  to  it 
lest  we  may  be  misunderstood. 

2.  Christopher  Stodghill,  in  bis  petition  in 
the  former  action,  averred  that  the  diversion 


of  the  stream  from  its  natural  course  across 
said  land  perpetually  deprived  him  from  the 
use  thereof,  to  his  great  damage  in  the  prose- 
cution of  his  business,  and  in  the  deprecia- 
tion in  value  of  his  said  farm  and  pasture 
lands,  aud  he  claimed  damages  in  the  sum 
of  .$499.  The  court  instructed  the  jury  iu 
that  case  that  they  were  not  to  consider  the 
question  in  regard  to  any  permanent  damage 
to  the  land,  for  the  reason  that  plaiutilf  had 
the  right  to  institute  other  suits  to  recover 
damages  sustained  after  the  comm;Micement 
of  the  action. 

But  the  plaiutilf  claimed  daiuagi's  generally. 
and  by  his  pleading  he  and  those  holding  un- 
der him  must  be  Ijouud.  ludeed,  we  do  not 
miderstand  counsel  for  appellee  to  contend 
otherwise.  The  damages  being  entire,  and 
susceptible  of  immediate  recovery,  the  plain- 
tiff could  not  divide  his  claim  and  maintain 
successive  actions.  The  erroneous  instruc- 
tions of  the  court  to  the  jury  did  not  affect 
the  question.  It  was  the  duty  of  the  plain- 
tiff to  have  excepted  and  appealed. 

"An  adjudication  is  final  and  conclusive, 
not  only  as  to  the  juatter  actually  determined, 
but  as  to  every  other  matter  which  the  par- 
ties might  have  litigated  and  have  had  de- 
cided, as  incident  to  or  essentially  connect- 
ed with  the  subject-matter  of  litigation." 
Preem.  Judgm.  §  249.  And  see  Dewey  v. 
Peck,  33  Iowa,  242;  Schmidt  v.  Zahensdnrf. 
.^)0  Iowa.  49S. 

The  foregoing  considerations  dispose  of  the 
case,  and  it  liecomes  unnecessary  to  examine 
or  determine  other  questions  discussed  by 
counsel.     Reversed. 


I'KKSKM"   AM)    rUoS! 'i:c  II  VK   DA  M  A< ;  KS. 


113 


FILER  V.  NEW  YORK  ("EN  P.  R.  CO. 

(49  N.   Y.  4-J.) 

Court  of  Aiiix'iils  of  Now  Y'ork.      1872. 

Action  by  Willinm  F.  Filer  a.iiiiiust  tlic  Ntnv 

Yorlv  Contnil  Rnili'oad  ('i)iuiiiiny  tor  (laiuajics 

for   personal   injuries   suslained   by    plaintiff's 

wife   while  ali.ulitint";  from   defendants   train. 

Jud.irnient  for  plainliff.  and  defendant  appeals. 

Attinned. 

(Jeoi-.iie  (i.  :siun,i;er.  fi>r  appellant.  J.  II. 
Martindale.   for  respondent. 

AELEX.  J.  Sneeessive  actions  cannot  be 
bn>u,iilit  by  the  plaintiff  for  the  recovery  of 
damaj^es,  as  they  may  accrue  from  time  to 
time,  resulting  from  the  injury  complained 
of,  as  would  be  the  case  for  a  continuous 
wrong  or  a  continued  trespass.  The  action 
is  for  a  single  wrong,  the  injury  resulting 
from  a  single  act,  and  the  plaintiff  was  en- 
titled to  recover  not  only  the  damages  which 
had.  been  actu.-illy  sustained  up  to  the  time 
of  the  trial,  but  also  compensation  for  future 
danniges;  that  is.  compensation  for  all  the 
damages  resulting  from  the  injury,  whether 
present  or  prospective.  The  limit  in  respect 
to  future  damages  is  that  they  must  be  such 
as  it  is  reasonably  certain  will  inevitably  and 
necessarily  result  from  the  injury.  To  ex- 
clude damages  of  that  character,  in  actions  for 
injuries  to  the  person,  wotdd  necessarily,  in 
many  cases,  deprive  the  injured  party  of  the 
greater  part  of  the  compensation  to  which 
he  is  entitled.  Curtis  v.  Railroad  Co.,  IS  N. 
Y.  534;  Drew  v.  Railroad  Co.,  2G  N.  Y.  40. 
Any  evidence  therefore  tending  to  show  the 
character  and  extent  of  the  injury  and  its 
probable  results,  as  well  as  the  probability  of 
a  retttrn  of  the  ilisease  induced  by  the  injury, 
in  the  ordinary  course  of  nature,  and  without 
any  extrinsic  superinducing  cause,  was  com- 
petent to  enable  the  jury  to  determine  the 
i-ompensation  to  whicli  the  plaintiff  was  en- 
titled. 

In  the  case  of  a  fractured  limb,  it  was 
thought  that  the  present  and  probable  future 
condition  of  it  were  proper  matters  of  in- 
quiry. Lincoln  v.  Railroad  Co..  23  Wend. 
425.  The  consequences  of  a  hypothetical 
second  fracture  were  deemed  too  remote.  The 
(luestiou  to  Dr.  Faling  as  to  the  probability, 
from  his  experience  and  medical  kiiowleilge. 
of  a  recurrence  of  an  intlanunation  of  the  in- 
jured muscle,  and  his  answer  that  he  could 
not  say  the  probabilities  were  very  strong, 
but  that  he  should  feel,  speaking  from  ex- 
jierience.  that  there  was  danger  of  the  return 
of  the  inflammation  and  accumulation  of  the 
lluid.  was  competent. 

The  evidence  was  that  of  a  medical  ex- 
pert, as  to  the  ordinary  or  probable  course 
LAW  DAM.2d  P:d.— 8 


of  disease  in  tlie  injured  muscle,  which  had 
residled  directly  from  the  injury  complained 
of.  and  related  to  the  future  condition  of  the 
l)erson  injured,  so  far  as  that  condition  could 
be  .ascertained  from  medi<-al  h'arning  and  ex- 
perience. So  too  the  opinion  of  the  same 
physician,  that  he  should  expect,  if  there  were 
no  return  of  inflammation,  that  the  general 
health  of  ^Irs.  Filer  would  improve,  but  would 
always  be  somewhat  impaired,  was  propjr 
.•iitd  competent,  to  enable  the  jury  to  ascer- 
t;iin  tli(>  actual  extent  of  tln'  injury  id  ihe 
l)laiiitiff. 

Tlu'fe  is  no  evidence  other  than  that  of 
experts  by  which  courts  and  juries  can  de- 
termine whether  a  disease  or  an  injury  has 
been  or  can  be  permanently  cured,  or  what 
its  effect  will  be  tipon  the  health  and  cai»a- 
bility  of  the  injured  person  in  the  future. 
The  hypothetical  opinion  of  Dr.  Ilillman  as 
to  the  cause  of  the  abscess  was  competent, 
and  tlie  answer,  cautiously  given,  that  if  they 
could  lind  no  other  cause,  they  would  natm'- 
ally  attribute  it  to  the  injury  complained  of, 
and  that  such  injury  received  in  1S(J4  was 
competent  to  produce  the  condition  he  s.mw  in 
18G7,   were  properly  allowed. 

Some  latitude  must  necessarily  be  given 
in  the  examination  of  medical  experts,  and 
in  the  propounding  of  hypothetical  (luestions 
for  their  opinions,  the  lietter  to  enable  the 
jury  to  pass  upon  the  questions  submitted  to 
them.  The  opinion  is  the  opinion  of  i\w  ex- 
pert, and  if  the  facts  are  found  by  the  jury 
as  the  counsel  by  his  questions  assumes  them 
to  be.  the  opinion  may  have  some  weight, 
otherwise  not.  It  is  the  privilege  of  the  coun- 
sel in  stich  cases  to  assume,  within  the  limits 
of  the  evidence,  any  state  of  facts  which  he 
claims  the  evidence  justifies,  and  have  the 
opinion  of  experts  upon  the  facts  thus  as- 
sumed. The  facts  are  assumed  for  the  pur- 
poses of  the  question,  and  for  no  other  pur- 
pose. 

There  was  no  error  in  the  refusal  to  charge 
as  requested.  The  question  submitted  was 
whether  the  abscess  and  consequent  illness 
were  caused  by  the  injury  ri^ceived  in  Novem- 
ber. lSd4.  and  if  that  was  found  in  the  atHrm- 
ative.  the  plaintiff,  if  the  other  facts  were 
foiuid  in  his  favor,  was  entitled  to  recover. 
There  was  no  evidence  authorizing  the  .sul- 
mission  of  the  question  whether  the  abscess 
might  not  have  been  in  part  caused  1)y  the 
injm-y  .spoken  of,  and  in  part  by  some  other 
means.  The  other  questions  made  upon  this 
appeal  are  considered  and  disposed  of  in  tlie 
action  at  the  suit  of  Helen  M.  Filer. 

There  was  no  error  upon  the  trial,  and  the 
judgment  must  be  atfirmed.  All  concur  ex- 
cept CHURCH.  C.  .T.,  who  did  not  vote. 

.Judgment  affirmed. 


lli 


PRESENT  AND  PROSPECTIVE  DAMAGES. 


PARKER  V.  RUSSEI^Ii. 

(133  Mass.  74.) 

Suprome    Judicial    Court   of    Massachusetts. 
Fraukliu.    June  28,  1882. 

Action  by  Isaac  Parker  against  Electa  P. 
Russell.  The  declaration  alleged  "that  the 
defendant,  in  consideration  of  the  convej'- 
ance  by  the  plaintiff  to  the  defendant  of  cer- 
tain real  estate  in  Deerfield,  promised  and 
agreed  to  support  and  maintain  the  plaintiff, 
furnishing  him  with  all  things  necessary  and 
convenient  in  sickness  and  in  health,  during 
the  natural  life  of  the  plaintiff;  that  the  de- 
fendant accepted  said  conveyance,  and  has 
occupied  and  used  said  estate,  but  has  re- 
fused and  neglected  and  still  neglects  and 
refuses    to    perform    her    said    agreement." 

The  evidence  showed  that  In  March.  1873, 
the  defendant,  for  a  good  consideration,  agreed 
to  support  the  plaintiff  during  his  life;  that 
she  did  support  him  in  her  house  from  that 
time  till  October  1,  1878,  when  her  house  was 
destroyed  by  fire;  and  that  for  two  years  since 
the  fire  the  defendant  had  furnislied  no  sup- 
port to  the  plaintiff. 

The  jury  returned  a  verdict  for  the  plaintiff 
for  ^972.25;  and  found  specially  that  the 
support  of  the  plaintiff,  under  the  terms  of 
the  contract,  from  the  date  of  the  fire  to  the 
date  of  the  writ,  was  of  the  value  of  $377.40, 
and  that  the  sauae  from  the  date  of  the  fire  to 
the  date  of  the  trial  was  of  the  value  of 
$473.60.     The  defendant  excepted. 

A.  De  Wolf,  for  plaintiff.  F.  L.  Greene,  for 
defendant. 

FIELD,  J.  In  an  action  for  the  breach  of 
a  contract  to  support  the  plaiutilt"  during  his 
life,  if  the  contract  is  regarded  as  still  sub- 
sisting, the  damages  are  assessed  up  to  date 
of  the  writ,  and  not  up  to  the  time  when  the 
verdict  is  rendered.  Fay  v.  Guynon,  131 
Mass,  31. 

But  if  the  breach  has  been  such  that  the 
plaintiff  has  the  right  to  treat  the  contract  as 
absolutely  and  finally  broken  by  the  defend- 
ant, and  he  elects  so  to  treat  it,  the  damages 
are  assessed  as  of  a  total  breach  of  an  entire 
contract.  Amos  v.  Oakley,  131  Mass.  413; 
Schell  V.  Plumb,  55  N.  Y.  592;  Remelee  v. 
Hall,  31  Vt.  582:  Fales  v.  Hemenway,  64  Me. 
373;  Sutherland  v.  Wyer,  67  Me.  64;  I.amo- 
reaux  v.  Itolfe,  36  N.  11,  33:  Mullaly  v.  Aus- 
tin, 97  Mass,  30;  Howard  v.  Daly,  61  N,  Y. 
362. 

Such  damages  are  not  special  or  prospec- 
tive damages,  but  are  the  damages  naturally 
i-esulting  from  a  total  breach  of  the  contract, 
and  are  suffered  when  the  contract  is  broken, 
and  are  assessed  as  of  that  time.  From  the 
nature  of  the  contract  they  include  damages 
for  not  performing  the  contract  in  the  fu- 
ture as  well  as  in  the  past.  The  value  of 
the  contract  to  the  plaintiff  at  the  time  it  is 
broken  nia.v  be  somewhat  indefinite  1>ecause 
t!ie  duratidu  of  the  life  of  the  plaintiff  is  un- 


certain, but  uncertainty  in  the  duration  of  a 
life  has  not,  since  the  adoption  of  life  tables, 
been  regarded  as  a  reason  why  full  relief  in 
damages  should  not  be  afforded  for  a  failure 
to  perform  a  contract  which  bj'  its  terms 
was  to  continue  during  life. 

When  the  defendant,  for  example,  absolute- 
ly refuses  to  perform  such  a  contract  after 
the  time  for  entering  upon  the  performance 
has  begun,  it  would  be  a  great  hardship  to 
compel  the  plaintiff  to  be  ready  at  all  times 
during  his  life  to  be  supported  by  the  de- 
fendant, if  the  defendant  shoidd  at  any  time 
change  his  mind;  and  to  hold  that  he  must 
resort  to  successive  actions  from  time  to  time 
to  obtain  his  damages  piecemeal,  or  else  leave 
them  to  be  recovered  as  an  entirety  by  his 
personal  representatives  after  his  death. 

Daniels  v.  Newton,  114  Mass,  530,  decides 
that  an  absolute  refusal  to  perform  a  contract 
before  the  performance  is  due  by  the  terms 
of  the  contract  is  not  a  present  breach  of  the 
contract  for  which  any  action  can  be  main- 
tained; but  it  does  not  decide  that  an  abso- 
lute refusal  to  perform  a  contract  after  the 
time  and  under  the  conditions  in  which  the 
plaintiff  is  entitled  Lo  require  performance, 
is  not  a  breach  cf  the  contract,  even  although 
the  contract  is  by  its  terms  to  continue  in  the 
future. 

The  cases  cited  by  the  defendant  are  not 
inconsistent  with  tjese  views.  In  Pierce  v. 
Woodward,  6  Pick.  206,  the  declaration  was 
for  a  breach  of  a  negative  promise,  namely, 
"not  to  set  up  the  business  of  a  grocer"  with- 
in certain  limits;  and  it  was  held  that  the 
damages  could  be  assessed  only  to  the  date 
of  the  writ.  The  defendant  might  at  any 
time,  without  the  consent  of  the  plaintiff, 
stop  carrying  on  the  bi^siness,  when  the  plain- 
tift"'s  damages  would  necessarily  cease. 

Powers  V.  Ware,  4  Pick.  106,  was  an  ac- 
tion of  covenant  broken,  brought  by  the  over- 
seers of  the  poor,  under  St.  1793,  c.  59,  §  5. 
for  the  breach  of  a  covenant  to  maintain  an 
apprentice  under  an  indenture  of  apprentice- 
ship. The  court  in  the  opinion  speak  of  the 
common-law  rule  m  assessing  damages  only 
to  the  date  of  the  writ.  But  the  statute  un- 
der which  the  actjon  was  brought  prevented 
the  overseers  from  treating  the  contract  as 
wholly  at  an  end,  because  it  gave  the  ap- 
prentice a  right  of  action  when  the  term  is 
expired,  "for  damages  for  the  causes  afore- 
said, other  than  such,  if  any,  for  which  dam- 
ages may  have  been  recovered  as  aforesaid," 
that  is.  b.v  the  overseers. 

Hambleton  v.  Veere,  2  Saund.  169,  was  an 
action  on  the  case  for  enticing  away  an  ap- 
prentice; and  Ward  v.  Rich,  1  Vent.  103,  M-as 
an  action  for  abducting  a  wife;  and  neither 
throws  much  light  on  the  rule  of  damages 
for  breach  of  a  contract. 

Horn  V.  Chandler.  1  Mod.  271.  was  cove- 
nant 1»roken  upon  an  indenture  of  an  infant 
apprentice,  who  imder  the  custom  of  London 
had  bound  himself  to  serve  the  plaintiff  for 
seven  years,    the  declaration  alleged   a  loss 


PKESENT  AND  I'itoSPKCTlNE  DAMAGES. 


11.: 


of  service  for  the  whole  term,  a  part  of  which 
was  unexpired;  on  demurrer  to  the  plea,  the 
declaration  was  held  good,  but  it  was  said 
"tliat  the  plaintiff  may  talvo  daiua,ues  for  tlie 
<k'parture  only,  not  the  loss  of  service  during 
the  term;  and  then  it  will  be  well  enougii." 
But  if  this  be  law  to-day  in  actions  on  in- 
dentures of  apprenticeship,  it  must  be  re- 
membered that  they  are  peculiar  contracts, 
in  which  the  riglits  and  obligations  of  the 
parties  are  often  affected  by  statutory  regu- 
lations, and  in  some  cases  they  cannot  be 
avoided  or  treated  as  at  an  end  at  the  will 
of  the  parties. 

In  this  case,  the  declaration  alleges  in  ef- 
fect a  promise  to  support  the  plaintiff  dur- 
ing his  life,  from  and  after  receiving  the 
conveyance  of  certain  real  estate,  an  accept- 
ance of  such  conveyance,  and  a  neglect  and 
refusal  to  perform  the  agreement.     These  are 


sufficient  allegations  to  enable  the  phiintiff 
to  recover  damages  as  for  a  total  brcarh. 
The  court  instructed  the  jury  that,  "if  the 
defendant  for  a  period  of  about  two  years 
r.i'glected  to  furnish  aid  or  support  to  the 
l)lMiiitiff,  witliout  any  fault  of  the  plaintiff, 
tlie  plaintiff  might  treat  tlie  contract  as  at  an 
end,  and  recover  damages  for  the  breach  of 
the  contract  as  a  whole."  We  cannot  say 
that  this  instruction  was  erroneous  as  ap- 
plied to  the  facts  in  evidence  in  the  cause, 
wliich  are  not  set  out. 

The  jury  must  have  found  that  the  plaintiff 
did  treat  the  contract  as  finally  broken  by 
the  defendant,  and  the  propriety  of  this  find- 
ing on  the  evidence  is  not  before  us.  Judg- 
ment on  the  verdict  for  the  larger  sum. 

NOTH  See,  also,  the  cases  under  hc:ul  of 
"Damages  for  Breach  of  Contract  for  Persuiial 
Services,"  post.  314. 


IIG 


DIKECT   AND    COXSEiiUENTlAL   DAMACiES-IN    CONTRACT. 


HADLEY  et  al.  v.  BAXENDALE  et  al. 

(9  Exch.  341.) 

Court   of   Exclioquer.    Hilary    TtTUi.      Feb.    23, 
1854. 

The  first  count  of  the  declaratiou  slated  that, 
before  and  at  the  time  of  the  ma  Icing  by  the 
defendants  of  the  promises  hereinafter  men- 
tioned, the  plaintiffs  carried  on  the  business 
of  millers  and  meal  men  in  co-partnership,  and 
were  proprietors  and  occupiers  of  the  City 
Steam  Mills,  iu  the  city  of  Gloucester,  and 
were  possessed  of  a  steam  engine,  by  means 
of  which  they  worked  the  said  mills,  and 
therein  cleaned  corn,  and  ground  the  same 
into  meal,  and  dressed  the  same  into  Hour, 
sharps,  and  bran;  and  a  certain  portion  of 
the  saiil  steam  engine,  to  wit,  the  cranlv  sliaft 
of  the  said  engine,  was  broken,  and  out  of 
repair,  whereby  the  said  steam  engine  was 
prevented  from  working,  and  the  plaintiffs 
were  desirous  of  having  a  new  crank  shaft 
made  for  the  said  mill,  and  had  ordered  the 
same  of  certain  persons  trading  under  the 
name  of  W.  Joyce  &  Co.,  at  Greenwich,  in  the 
county  of  Kent,  who  had  contracted  to  make 
the  said  new  shaft  for  the  plaintiffs;  but  be- 
fore they  could  complete  the  said  new  shaft  it 
was  necessary  that  the  said  broken  sliaft 
should  be  forwarded  to  their  works  at  Green- 
wich, iu  order  that  the  said  nev*-  shaft  might 
be  made  so  as  to  fit  the  other  parts  of  the  said 
engine  which  were  not  injured,  and  so  that  it 
might  be  substituted  for  the  said  broken  shaft; 
and  the  plaintiffs  were  desirous  of  sending  the 
said  broken  sliaft  to  the  said  W.  Joyce  &  Co. 
for  the  purpose  aforesaid;  and  the  defendants, 
before  and  at  the  time  of  the  making  of  the 
said  promises,  were  conimou  carriers  of  goods 
and  chattels  for  hire  from  (Gloucester  to  Green- 
wich, and  carried  on  such  business  of  common 
carriers  under  the  name  of  Pickford  &:  Co.; 
and  the  plaintiffs,  at  the  request  of  the  defend- 
ants, delivered  to  them,  as  such  carriers,  the 
said  broken  shaft,  to  be  conveyed  by  the  de- 
fendants as  such  carriers  from  Gloucester  to 
the  said  W.  Joyce  &  Co.,  at  Greenwich,  and 
there  to  be  delivered  for  the  plaintiffs  on  the 
second  day  after  the  day  of  such  delivery,  for 
reward  to  the  defendants;  and  in  considera- 
tion thereof  the  defendants  then  promised  the 
plaintiffs  to  convey  the  said  broken  shaft  from 
(Gloucester  to  (ireenwich,  and  there,  on  the 
said  second  day.  to  deliver  the  same  to  the 
said  W.  Joyce  &  Co.  for  the  plaintiffs;  and.  al- 
though such  second  day  elapsed  before  the 
commencement  of  this  suit,  yet  the  defendants 
did  not  nor  would  deliver  the  said  broken  shaft 
at  Greenwich  on  the  said  second  day,  or  to  the 
said  W.  Joyce  &  Co.  on  the  said  second  day, 
but  wholly  neglected  and  refused  so  to  do  for 
the  space  of  seven  days  after  the  said  shaft 
was  so  delivered  to  them  as  aforesaid. 

The  second  count  stated  that,  the  defendaDts 
being  such  carriers  as  aforesaid,  the  plaintiffs, 
at  the  request  of  the  dt>fendants.  caused  to  be 
delivered   to   them   as   such   cai'ricrs   the   said 


broken  shaft,  to  be  conveyed  l)y  the  defend- 
ants from  ..loucester,  aforesaid,  to  the  said 
W.  Joyce  &  Co.,  at  Greenwich,  and  there  to 
be  delivered  by  the  defendants  for  the  plain- 
tiffs. Avitliin  a  reasonable  time  in  that  behalf, 
for  reward  to  the  defendants;  and  in  consid- 
eration of  the  premises  in  this  count  mention- 
ed, the  defendants  promised  the  plaintitfs  to 
use  due  and  proper  care  and  diligence  in  and 
about  the  carrying  and  conveying  the  said 
broken  shaft  from  Gloucester  aforesaid  to  the 
said  "SV.  Joyce  &  Co.,  at  Greenwich,  and  there 
delivering  the  same  for  the  plaintiffs  in  a  rea- 
sonable time  then  following  for  the  carriage, 
conveyance,  and  delivery  of  the  said  broken 
shaft  as  aforesaid;  and,  although  such  rea- 
sonable time  elapsed  long  before  the  com- 
mencement of  this  suit,  yet  the  defendants  did 
not  nor  would  use  due  or  proper  care  or  dili- 
gence in  or  about  the  carrying  or  conveying  or 
delivering  the  said  In-olvcn  shaft  as  aforesaid, 
within  such  reasonable  time  as  aforesaid,  but 
wholly  neglected  and  refused  so  to  do;  and 
by  reason  of  the  carelessness,  negligence,  and 
improper  conduct  of  the  defendants,  the  said 
broken  shaft  was  not  delivered  for  the  plain- 
tiffs to  the  said  W.  Joyce  &  Co.,  or  at  Green- 
wich, until  the  expiration  of  a  long  and  un- 
reasonal)le  time  after  the  defendants  received 
the  same  as  aforesaid,  and  after  the  time  when 
the  same  should  have  lieen  delivered  for  the 
plaintitfs;  and  by  reason  of  the  several  prem- 
ises the  completing  of  the  said  new  shaft  was 
delayed  for  five  days,  and  the  ])laintiffs  were 
prevented  from  working  their  said  steam  mills, 
and  from  cleaning  corn,  and  grinding  the  same 
into  meal,  and  dressing  the  meal  into  flour, 
sharps,  or  bran,  and  from  carrying  on  their 
said  business  ;ls  millers  and  meal  men  for  the 
space  of  five  days  beyond  the  time  that  they 
otherwise  would  have  been  prevented  from  so 
doing,  and  they  thereby  were  un;U)le  to  supply 
many  of  their  customers  with  flour,  sharps, 
and  bran  during  that  period,  and  were  obliged 
to  buy  flour  to  supply  some  of  their  other  cus- 
tomers, and  lost  the  means  and  opportunity 
of  selling  tlour,  sharps,  and  bran,  and  were 
deprived  of  gains  and  profits  which  otherwise 
would  have  accrued  to  them,  and  were  unable 
to  employ  their  workmen,  to  whom  they  were^ 
compelled  to  pay  wages  during  that  period, 
and  were  otherwise  injured;  and  the  plaintiffs 
claim  £300. 

The  defendants  pleaded  non  assumi)serunt  to 
the  first  count,  and  to  the  second  payment  of 
£-2'}  into  court  in  satisfaction  of  the  plaintiffs" 
claim  under  that  count.  The  plaintiffs  enter- 
ed a  nolle  prosequi  as  to  the  first  count,  and  as 
to  the  second  plea  they  replied  that  the  sum 
paid  into  court  was  not  enough  to  satisfy  the 
plaintiffs'  claim  in  respect  thereof;  upon  which 
replication  issue  was  joined. 

At  the  trial  before  CROMPTON,  J.,  at  the 
last  Gloucester  assizes  it  appeared  that  the 
plaintiffs  carrit^l  on  an  extensive  business  as 
millers  at  Gloucester;  and  that  on  the  11th 
of  May  their  mill  was  stopped  by  a  breakage 
of  tlie  crank  shaft,   by   which   tlie  mill    was 


DIKECT  AND    COXSKQIKXI  1  Al.    DAMACKS— IN   CONTUACT 


117 


worktHl.  The  steun  I'lifjiiio  was  mauulaciur-  j 
t'd  by  Messrs.  Joyce  &  Co.,  the  eiiKiueei-s,  at 
(Greenwich,  and  it  became  necessary  to  send 
ihe  siiaft  as  a  patteni  for  a  new  one  to  Green- 
wich. The  fracture  was  discovered  on  the 
12th,  and  on  tlie  13th  the  phiintilTs  sent  one 
of  their  servants  to  the  ofhce  of  the  defend- 
ants, wlio  are  the  well-known  can-iei-s  trad- 
iuj;  under  the  name  of  I'ickford  &  Co.,  for  the 
purpcse  of  having  the  shaft  carried  to  Green- 
wich. The  plaintiffs'  sen-ant  told  the  clerk 
lliat  the  mill  was  stopped,  and  that  the  shaft 
luust  be  sent  immediately;  and  in  answer  to 
the  inquiry  Avhen  the  shaft  would  be  taken 
The  answer  was  that  if  it  was  sent  up  by 
twelve  o'clock  any  day  it  Avould  be  delivered 
at  Greenwich  on  the  following  day.  On  the  i 
following  day  the  shaft  was  taken  by  the  de- 
feadants.  before  noon,  for  the  purpose  of  be- 
ing conveyed  to  Greenwich,  and  the  sum  of 
£2  4s.  was  paid  for  its  can-iage  for  the  whole 
distance.  At  the  same  time  the  defendants' 
clerk  was  told  that  a  special  entry,  if  requir- 
ed, should  be  made,  to  hasten  its  delivery. 
The  delivery  of  the  shaft  at  Greenwich  w-as 
delayed  by  some  neglect,  and  the  conse- 
quence was  that  the  plaintiffs  did  not  receive 
the  new  shaft  for  several  days  after  they 
would  otherwise  have  done,  and  the  work- 
ing of  their  mill  was  thereby  delayed,  and 
they  thereby  lost  the  profits  they  would  oth- 
erwise have  received. 

On  the  part  of  the  defendants  it  was  object- 
ed that  these  damages  were  too  remote,  and 
that  the  defendants  were  not  liable  with  re- 
spect to  them.  The  learned  judge  left  the 
case  generally  to  the  juiy.  who  found  a  ver- 
dict witli  £2.5  damages  beyond  the  amount 
paid  into  court. 

Keating  &  Dowdeswell.  showed  cause. 
Whateley,  Willes  &  Phipsou,  in  support  of 
the  rule. 

The  judgment  of  the  court  was  now  deliv- 
ered by 

ALDERSON,  B.  We  think  that  thereought 
to  be  a  new  trial  in  this  case;  but  in  so  do- 
ing we  deem  it  to  be  expedient  and  necesisary 
to  state  explicitly  the  rule  which  the  judge, 
at  the  next  tTial,  ought,  in  our  opinion,  to  di- 
rect the  jury  to  be  governed  by  when  they 
(^timate  the  damages. 

It  is,  indeed,  of  the  last  importance  that 
we  should  do  this;  for,  if  the  juiy  are  left 
^^  ithout  any  definite  rule  to  guide  them,  it 
w  ill,  in  such  cases  as  these,  manifestly  lead 
to  the  greatest  injustice.  The  courts  have 
done  this  on  several  occasions;  and  in  Blake 
V.  Railway  Co.,  21  L.  J.  Q.  B.  237,  the  court 
granted  a  new  trial  on  this  very  ground,  that 
the  i-ule  had  not  been  definitely  laid  down  to 
the  jury  by  the  learned  judge  at  nisi  prius. 
"There  are  certain  established  mles,"  this 
<ourt  says,  in  Alder  v.  Keighley,  lo  .Moes.  & 
W.  117,  "according  to  which  the  jury  ought 
to  find."  And  the  court  in  that  case  adds: 
"And  here  there  is  a  clear  rule  that  the 
amount  which  would  have  been  received  if 


the  contract  had  been  kfi>l  is  the  measure  of 
damages  if  the  contract   is  broken."     Now, 
we  tliink  the  i)roper  rule  in  such  a  case  as  the 
picsent    is    this:     Where    two    P^u-tieg^hjVFe 
jiiade  a  contract  which  one  of  them  has  bro- 
ken,   the    damages    which    the    other    partj' 
ought  to  receive  in  respect  of  such  breach  of  \ 
contiact  should  be  such  as  may   fairly  and 
reasTnuibly^  be  considered  either  arising  nat- 
urally,—!, e.,  according  to  the  usual  course  of 
things,  from  such  breach  of  contract  itself,— 
oi-   sucn  as  may  reasonal)ly   be  supposcul  to 
have  been  in  the  contemplation  of  both  par- 
ties at  the  time  they  made  the  contract,  as, 
the  probable  result  of  the  breach  of  it.     Now, 
if  the  special  circumstances  under  which  the 
contract  was  actually  made  were  communi- 
cated   by    the   plaintiffs    to    the   defendants, 
and  thus  known  to  both  parties,  the  damagc>s 
resulting    from    the   breach    of    such   a   con- 
tract, which  they  would  reasonably  contem- 
plate, would  be  the  amount  of  injury  which 
would  ordinarily  follow  from  a  breach  of  con- 
tract  under  these   special   circumstances    so 
known  and  communicated.    But,  on  the  other 
hand,    if   these    special    circumstances    were 
wholly   unknown  to  the  party  breaking  the 
contract,  he,  at  the  most,  could  only  be  sup- 
posed to  have  had  in  his  contemjilation  the 
amount  of  injury  which  would  arise  gener- 
ally, and  in  the  great  multitude  of  cases  not 
affected  by  any  special  circumstances,  from 
such  a  breach  of  contract.     For,  had  the  spe- 
cial circumstances  been  known,  the  parties 
might  have  .specially  provided  for  the  breach 
of  conti'act  by  special  teniis  as  to  the  dam- 
ages in  that  case;    and  of  this  advantage  it 
would  be  veiy  unjust  to  deprive  them.    Now, 
the  above  principles  are  those  by  which  we 
think  the  jiUT  ought  to  be  guided  in  esti- 
mating the  damages  arising  out  of  any  breach 
of  contract.     It  is  said  that  other  cases,  such 
as  breaches  of  contract  in  the  nonpayment  of 
money,  or  in  the  not  making  a  good  title  to 
land,   are  to  be  treated  as  exceptions   from 
this,  and  as  governed  by  a  conventional  rule. 
But  as,  in  such  cases,  both  parties  must  be 
supposed  to  be  cognizant  of  that  well-known 
rule,    these   cases    may,   we  think,    be   more 
properly  classed  under  the  rule  above  enunci- 
ated as  to  cases  under  known  special  circum- 
stances, because  there  both  parties  may  rea 
sonably  be  presumed  to  contemplate  the  esti- 
mation of  the  amount  of  damages  according 
to  the  conventional  rule.     Now,  in  the  pres- 
ent case,  if  we  are  to  apply  the  principles 
above  laid  down,  we  find  that  the  only  cir- 
cumstances here  communicated  by  the  plain- 
tiffs to  the  defendants  at  the  time  the  con- 
tract was  made  were  that  the  article  to  be 
carried  Avas  the  broken  shaft  of  a  mill,  ami 
that  the  plaintiffs  were  the  millers  of  that 
mill.     But  how  do  these  circumstances  show 
reasonably  that  the  profits  of  the  mill  must 
be  stopped  by  an  unreasonaltle  delay  in  the 
deliveiy  of  the  broken  shaft  by  the  carrier 
to   the  third  person":'    Suppose  the  plaintiffs 
had  another  shaft  in  their  pos.'-ession,  put  up 


118 


DIRECT  AND   CONSEQUENTIAL  DAMAGES-IN   CONTRACT. 


or  putting  up  at  the  time,  and  that  they  only 
wished  to  send  back  the  broken  shaft  to  the 
engineer  who  made  it,  it  is  clear  that  tliis 
would  be  quite  consistent  with  the' above  oir- 
cnuistanees,  and  yet  the  unreasonable  delay 
in  the  delivei-y  would  have  no  effect  upon  the 
intermediate  profits  of  the  mill.  Or,  again, 
suppose  that,  at  the  time  of  the  delivery  to 
the  carrier,  the  machineiT  of  the  mill  had 
been  in  other  respects  defective,  then,  also, 
the  same  results  would  follow.  Hero  it  is 
true  that  the  shaft  was  actually  sent  back  to 
serve  as  a  motlel  for  a  new  one,  and  that  the 
want  of  a  new  one  was  the  only  cause  of  the 
stoppage  of  the  mill,  and  that  the  loss  of  prof- 
its really  arose  from  not  sending  down  the 
new  shaft  in  proper  time,  and  that  this  arose 
from  the  delay  in  delivering  the  broken  one 
to  serve  as  a  model.  But  it  is  obvious  that 
in  the  great  multitude  of  cases  of  millers 
sending  off  broken  shafts  to  third  pei'sons  by 
a  carrier  under  ordinaiy  circumstances,  such 
consequences   would   not,   in  all  probability, 


have  occurred;  and  these  special  circum- 
stances were  here  never  communicated  by  the 
plaintiffs  to  the  defendants.  It  follows.! 
therefore,  that  the  loss  of  profits  here  cJinuot 
reasonably  be  considered  such  a  consequence 
of  the  breach  of  contract  as  coiild  have  been 
fairly  and  reasonably  contemplated  by  both 
the  parties  when  they  made  this  contract. 
For  such  loss  would  neither  have  flowed  nat- 
urally from  the  breach  of  this  contract  in  the 
great  multitude  of  such  cases  occurring  luj- 
der  ordinary  circumstances,  nor  were  the  spe- 
cial circumstances,  which,  perhaps,  w^ould 
have  made  it  a  reasonable  and  natural  conse- 
quence of  such  breach  of  contract,  comnumi- 
cated  to  or  known  by  the  defendants.  The 
judge  ought,  therefore,  to  have  told  the  jury 
that  upon  the  facts  then  before  them  they 
ought  not  to  take  the  loss  of  profits  into  con- 
sideration at  all  in  estimating  the  damages. 
There  must  therefore  be  a  new  trial  in  this 
case. 
Rule  absolute. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


119 


CORY  V.  THAMES  IRONWORKS  &  SHIP- 
BUILDING 00. 

(L.  R.  3  Q.  B.  181.) 

Court  of  Queen's  Bench,  Hilary  Terra.    Jan.  17, 
1868. 

This  was  an  issue  dirocteci  by  the  court  of 
ehaucery  under  8  &  9  Viet.  c.  109,  to  ascer- 
tain the  amount  of  damages  to  which  the 
plaintiffs  wore  entitled,  inter  alia,  by  reason 
of  the  delay  by  the  defendants  in  the  deliv- 
ery of  the  hull  of  a  floating  boom  derrick,  im- 
der  a  contract  of  sale. 

At  the  trial  before  Sheo.  J.,  at  the  sittings  in 
London,  after  Hilary  term,  ]S()4,  a  verdict 
was  taken  for  the  plaintiffs,  subject  to  a  case 
to  be  started  by  an  arbitrator. 

1.  The  plaintiffs  are  coal  merchants  and 
ship  owners,  having  a  very  large  import  trade 
in  coal  from  Newcastle  and  other  places  into 
the  port  of  Loudon.  The  defendants  are  iron 
manufacturers  and  ship  builders  in  London. 

2.  The  plaintiffs  had  introduced,  at  the 
docks  where  they  discharged  the  cargoes  of 
coal  from  their  ships,  a  new  and  expeditious 
mode  of  unloading  the  coals  by  means  of  iron 
buckets,  which  were  worked  by  hydraulic 
pressure  over  powerful  cranes,  and  the  plain- 
tiffs' trade  having  considerably  increased  they 
were  desirous  of  improving  the  accommoda- 
tion offered  in  the  discharge  of  their  vessels 
by  the  above  mode;  this  the  defendants  were 
not  aware  of. 

3.  The  defendants  had  been  building  for  the 
Patent  Derrick  Company  the  hull  of  a  large 
vessel  called  a  patent  boom  derrick,  which 
was  constructed  and  fitted  with  heavy  and 
powerful  machinery  for  raising  sunken  ves- 
sels or  other  similar  purposes  requiring  great 
power.  The  derrick  was  a  large  flat-bottom- 
ed iron  vessel  or  float,  250  feet  long  by  90 
feet  wide  and  14  feet  deep,  divided  by  iron 
bulk  heads  of  great  strength  into  more  than 
eighty  compartments,  measuring  generally  15 
feet  long  by  13  feet  wide,  she  was  decked 
over  all  and  had  hatchways  leading  from  the 
deck  to  the  interior. 

4.  During  the  constructing  of  this  vessel  the 
derrick  company  became  insolvent,  and  as 
the  defendants  could  not  obtain  payment  for 
the  vessel  they  were  obliged  to  take  it  upon 
their  own  hands  and  sell  it  for  the  best  price 
they  could  obtain. 

5.  On  the  1st  of  October,  1861,  the  plaintiffs 
entered  into  the  following  agreement  with 
the  defendants:  The  defendants  agree  to 
sell  and  the  plaintiff's  agree  to  purchase  "for 
the  sum  of  £3,500,  the  hull  of  the  floating 
boom  derrick  now  lying  in  Bugsby's  Hole  in 
the  river  Tliames.  It  is  agreed  between  the 
parties  hereto  that  payment  shall  be  made  in 
the  following  manner,  that  is  to  say,  the  sum 
of  £350  at  the  signing  of  this  memorandum, 
a  further  sum  of  £L-IU0  when  possession  is 
given,  which  is  to  be  given  within  three 
months  from  the  date  hereof,  and  the  sum  of 
£1.750  by  a  bill  of  exchange  to  be  dated  on 


the  day  when  possession  is  given,  and  to  l)e 
drawn  at  six  months'  date"  by  the  defend- 
ants and  accepted  by  the  plaintitfs.  Tlie  de- 
fendants were  to  be  at  liberty  to  sell  the 
tripod,  boom,  and  other  machinery  in  the 
hull. 

6.  The  plaintilfs  purcliased  the  derrick  for 
the  purposes  of  their  Ijusiness,  in  order  to 
erect  and  place  in  it,  as  tliey  in  fact  did,  large 
hydraulic  cranes  and  machinery,  such  as  they 
had  previously  used  at  the  docks,  and  by 
means  of  these  cranes  to  transship  their  coals 
from  colliers  into  l)arges  Avithout  tlie  neces- 
sity for  any  intermediate  landing,  the  der- 
rick, for  this  purpose,  being  moored  in  the 
river  Thames,  and  tlio  plaintiffs  paying  the 
conservators  of  the  river  a  large  rent  for  al- 
lowing it  to  remain  there. 

7.  The  derrick  was  the  first  vessel  of  the 
kind  that  had  ever  been  built  in  this  country, 
and  the  purpose  to  which  the  plaintiffs  sought 
to  apply  it  was  entirely  novel  and  excep- 
tional. No  hull  or  other  vessel  had  ever  been 
fitted  either  by  coal  merchants  or  others  in  a 
similar  way  or  for  a  similar  purpose;  and 
the  defendants  at  the  date  of  the  agreement 
had  notice  that  the  plaintiff's  purchased  the 
derrick  for  the  purpose  of  their  business,  con- 
sidering that  it  was  intended  to  be  used  as 
a  coal  store;  but  they  had  no  notice  or  knowl- 
edge of  the  special  object  for  Avhich  it  was 
purchased  and  to  which  it  was  actually  ap- 
plied. 

8.  At  the  date  of  the  agreement  the  defend- 
ants believed  that  the  plaintiffs  were  pur- 
chasing the  derrick  for  the  purpose  of  using 
her  in  the  Avay  of  their  business  as  a  coal 
store;  but  the  plaintiffs  had  not  at  that  time 
any  intention  of  applying  the  derrick  to  any 
other  purpose  than  the  special  ])urpose  to 
which  slie  was  in  fact  afterwards  applied. 

9.  If  the  plaintiffs  had  been  prevented  from 
applying  the  derrick  to  the  special  purpose 
for  which  she  was  purchased  and  to  which 
she  was  applied,  they  would  have  endeav- 
oured to  sell  her  to  persons  in  the  hulk  trade 
as  a  hulk  for  storing  coals,  and  had  they 
been  unable  to  sell  her,  they  could  and  would 
have  employed  her  in  that  trade  and  in  that 
way  themselves;  that  was  the  most  obvious 
use  to  which  such  a  vessel  was  capable  of 
being  applied  by  persons  in  the  plaintiffs* 
business,  but  the  hulk  trade  is  a  distinct 
branch  of  the  coal  trade,  and  neither  formed 
nor  forms  any  part  of  the  business  carried  un 
by  the  plaintiffs;  and  the  derrick  being  an 
entirely  novel  and  exceptional  vessel  and  the 
first  of  the  kind  built,  no  vessel  of  the  sort 
had  ever  been  applied  to  such  a  purpose.  The 
derrick  was,  however,  capable  of  being  ap- 
plied to  and  profitably  employed  for  that  pur- 
pose, and  had  she  been  purchased  for  that 
purpose  her  non-delivery  at  the  time  fixed  by 
the  agreement  would  have  occasioned  loss 
and  damage  to  the  plaintiffs  to  the  amount 
of  £420. 

10.  Great  difficulty  was  experienced  in  re- 
moving the  tripod  and  other  things  froim  the 


120 


DIRECT  AND    COX.SK<,»ri-:NTlAL   DAMAGES— IN    CONTKACT. 


lirll  ill  cousiMjueuce  of  their  eiionnous  weight 
and  size,  anci  the  hull  was  uot  cleared  until 
the  latter  eud  of  May,  1862,  when  it  was 
found  that  some  damage  had  been  done  to 
the  bottom  and  other  parts  of  the  vessel  in 
the  course  of  removing  the  machinery. 

11.  Upon  the  hull  being  cleared,  the  de- 
fendants gave  notice  to  the  plaintiffs  that 
tliey  were  ready  to  deliver  it  to  them. 

12.  The  plaintiffs,  however,  refused  to  re- 
ceive the  hull  until  the  damage  had  been 
properly  repaired,  and  some  difference  arose 
between  the  respective  surveyors  of  the 
plaintiffs  and  defendants  as  to  the  extent  of 
the  injury  and  the  proper  mode  of  repairing 
it.  The  plaintiffs  continued  to  make  objec- 
tions to  the  sufficiency  of  the  repairs  until  the 
1st  of  July,  1SG2,  when  the  vessel  was  deliv- 
ered. 

13.  The  plaintiffs,  on  the  1st  of  October, 
1861,  duly  paid  to  the  defendants  £350  in 
part  payment  of  the  purchase-money,  and 
they  also  duly  paid  the  remainder  of  the  pur- 
chase-money at  the  time  when  the  hull  was 
delivered  to  them. 

14.  The  three  months  within  which,  accord- 
ing to  the  terms  of  the  agreement,  the  de- 
fendants Were  to  give  up  to  the  plaintiff's  pos- 
se.ssiou  of  the  hull,  expired  on  the  1st  of 
January,  1862,  but  the  defendants  did  not 
deliver  it  to  the  plaintiffs  until  the  1st  of 
July,  1862. 

l.").  The  injury  caused  to  the  hull  in  the  re- 
moval of  the  machinery  depreciated  her  to 
the  amount  of  £50. 

16.  The  plaintiffs,  in  anticipation  of  the  de- 
livery of  the  hull  in  January,  1862,  entered 
into  a  contract  with  Sir  William  Armstrong 
for  the  construction  and  delivery  to  them  at 
a  very  heavy  outlay  of  the  necessary  machin- 
ery for  the  purpose  for  which  they  purchased 
the  hull,  and^  in  consequence  of  the  delay  in 
the  delivery  of  the  hull  by  the  defendants 
the  plaintiffs  were  prevented  from  talcing 
delivery  of  the  machinery  from  Sir  William 
Armstrong,  and  the  plaintiffs,  on  the  25th 
of  July,  1862,  paid  Sir  William  Armstrong 
£3,000,  the  interest  of  which  was  lost  to 
them.  The  plaintiff's  also  purchased,  at  a 
large  cost,  two  steam  tugs  to  be  used,  in  con- 
junction with  the  hull,  in  towing  the  coal 
barges  to  and  from  the  same,  and  which 
steam  tugs  were  comparatively  useless  to  the 
plaintiffs  during  the  time  in  which  the  hull 
was  undelivered,  and  the  Interest  of  the 
money  expended  on  the  same  was  lost  to  the 
plaintiffs;  but  none  of  the  circumstances 
AA-ere  known  to  the  defendants. 

17.  If  the  defendants  had  delivered  the  hull 
to  the  plaintiffs  in  proper  time  the  plaintiffs 
would  have  realized  large  profits  by  the  use 
of  it  in  the  aforesaid  manner,  and  they  were 
put  to  great  inconvenience  and  sustained 
great  loss  owing  to  their  not  having  posses- 
sion of  the  hull  to  meet  the  great  increase  in 
tlieir  trade. 

18.  The  plaintiff's  also  lost  £8.  15s.  for  in- 
terest upon  the  portion  of  the  purcluise-mon- 


ey  of  the  hull  paid  by  them  to  the  defendants 
before  delivery. 

The  question  for  the  opinion  of  the  court 
was,  whether  the  plaintiffs  were  entitled  to 
recover  against  the  defendants  the  Avhole  or 
any,  and  which  of  the  above  heads  of  dam- 
age? 

J.  Brown,  Q.  C.  (Watkin  Williams  with 
him),  for  the  plaintiff's. 

The  question  is  to  what  amount  of  dam- 
ages the  plaintiff's  are  entitled  by  reason  of 
the  delay  by  the  defendants  for  six  mouths 
in  the  delivery  of  the  hull  of  the  derrick.  It 
appears  from  paragraphs  6-9  that  the  hull  It- 
self was  a  novelty  on  the  Thames,  and  the 
special  purpose  for  which  the  plaintiff's 
bought  it,  viz.,  to  transship  coals,  by  means 
of  hj'draulic  cranes,  direct  from  the  colliers 
to  barges,  was  also  a  novelty,  and  imkuown 
to  the  defendants;  but  it  also  appears  that 
the  defendants  knew  that  the  hull  was  to  be 
used  by  the  plaintiff's  for  some  purpose  con- 
nected with  their  coal  trade,  and  the  defend- 
ants supposed  that  it  was  to  be  used  as  a 
hulk  for  storing  coals,  Avhich  was  the  obvious 
use  to  Avhich  it  might  be  applied;  and  if  it 
had  been  put  to  this  latter  use  the  arbitrator 
finds  that  the  delay  in  the  delivery  would 
have  caused  a  loss  to  the  plaintiff's  of  £420. 
The  plaintiffs  sustained,  in  fact,  a  much 
greater  loss  from  not  having  the  hull  ready 
for  their  special  purpose  (paragraphs  16,  17); 
but  it  must  be  admitted  that  the  plaintiff's, 
according  to  the  decision  in  Hadley  v.  Baxen- 
dale,  9  Exch.  341,  23  Law  J.  Exch.  179,  are 
not  entitled  to  claim  this  greater  measure  of 
damages,  as  the  defendants  were  not  aware 
of  the  special  purpose  for  which  the  hull  was 
bought.  However,  the  plaintiff's  are  entitled, 
in  conformity  with  the  decision  in  that  case, 
to  the  £420,  as  that  is  the  amount  of  damages 
AA'hich  may  reasonably  be  considered  as  aris- 
ing naturally  from  the  breach  of  contract. 
The  plaintiff's  would,  at  all  events,  clearly  be 
entitled  to  the  interest  on  their  purchase- 
money  (paragraph  18). 

[BLACKBURN,  J.  In  the  alternative  of 
tlieir  not  being  entitled  to  the  £420.] 

Yes;  and  also  to  the  £50  deterioration 
(paragraph  15).  But  the  main  question  is  as 
to  the  £420,  and  the  mere  reading  of  state- 
ment of  the  arbitrator  in  paragraphs  0-9 
shows  that  the  plaintiffs  are  entitled  to  this. 

J.  D.  Coleridge,  Q.  C.  (Garth.  Q.  C,  and  riiil- 
brick  with  him),  for  defendants. 

No  doubt  the  plaintiff's  are  entitled  to  the  in- 
terest, in  the  alternative,  and  to  the  £50;  but 
they  are  not  entitled  to  the  £420.  This  sum  is 
the  damages  resulting  fro;u  a  special  purpose, 
within  the  principle  of  Hadley  v.  Baxendale,  9 
Exch.  341,  23  Law  J.  Exch.  179,  just  as 
much  as  the  larger  sum,  which  the  plaintiffs 
admit  they  cannot  claim.  The  rule  laid 
doAvn  in  Hadley  v.  Baxendale,  9  Exch.  341,  23 
Law  J.  Exch.  179,  is  a  substantial   and  not 


lilKKCT    AM»    CoNSKtJl  lO.NTIAl,    1  >A  M  .\(  i  i:S— IX    CU.NTKACT. 


121 


mcivly  icchiiiriil  nilr.  vi/...  ili.il  you  aro  to  cii- 
4l(.';ivor  to  ascertain  the  real  amount  of  dani- 
n-es  that  the  plaintiff  has  sustained,  and  if 
it  is  just  and   reasonable  that   the  defemlant 
should  make  jiood  this  amount,  he  must  pay 
it:  provided  iliat   if  h(>  had  no  notice  of  any 
<-ircumstance  wliich  makes  lh(-  plaintiffs  loss 
jireater  than  it  ordinarily  would  be.  he  eamiot 
be  called  upon  to  pay  this  extra  damage:    and 
the  court  of  excheiiner  say  if  this  limit  were 
not  put  th(>re  would  be  no  limit  to  what  de- 
fendants  in   certain  circumstances  might  be 
called   upon  to  pay;  and   therefore,   say  the 
ct)urt.  in  order  to  recover  from  the  vendor  the 
damage  accruing  on  account  of  some  special 
sub-contract  or  other  circumstance,  the  vendee 
I  must  affect  him  with  notice.  ^\n(l  the  co\n-t  lay 
I  down  the  rule  that  the  plainciff  can  only  re- 
l<H)ver  such  d;images"as  are  the  natural  result 
I  of  the  breach  of^c^outract  in  ordinary  circum- 
'  stances,   or,— which  w'ould   appear  to  be  an- 
Jother  mode  of  expressing  the  same  thing,— 
["what  \\'&V0  iirT"TTe~contenipIafron  of  both  par- 
'  ties  aTHie  fime  of  the  contract. 

/      [BLACKBURN,  J.     The  damages  are  to  be 
Avhat  would  be  the  natural  consequences  of 
I  2-^''^^'^^  under  circumstances  which  both  par- 
1  ties  w'ere'"aware  of.] 

Accepting  that  as  the  statement  of  the  law. 
Avhat  are  the  facts  here?  The  subject-matter 
of  the  contract  is  entirely  novel :  and  the  pur- 
pose for  which  it  was  intended  to  be  used  in 
point  of  fact  was  entirely  novel  and  excep- 
tional; but  any  use  of  this  hull  would  be  novel 
and  exceptional,  so  that  the  £420  comes  as 
much  within  the  rule  m  Hadley  v.  Baxeudale, 
V  Exch.  341.  23  Law  J.  Exch.  179,  as  the  other 
and  larger  loss  actually  sustained. 

[COCKBUKN,  C.  J.  No  doubt,  in  order  to 
recover  damage  arising  from  a  special  ptir- 
jiose  the  buyer  must  have  communicated  the 
special  purpose  to  the  seller;  but  there  is  one 
thing  which  must  always  be  in  the  knowledge 
of  both  parties,  which  is  that  the  thing  is 
liought  for  the  purpose  of  being  in  some  way 
or  other  profitably  applied.] 

No  doubt;  but  the  arbitrator  has  not  found 
that.  He  finds  the  special  purpose  for  which 
the  hull  was  bought,  and  to  which  it  was 
in  fact  applied,  and  also  the  amount  of  dam- 
age which  the  plaintiffs  would  have  suf- 
fered had  they  applied  it  to  another  special 
purpose. 

[BLACKBURN,  J.  Yes;  but  the  arbitrator 
(paragraphs  8  and  9)  says  that  was  the  most 
obvious  purpose,  and  the  one  to  w-hich  the  de- 
fendants supposed  the  hull  was  intended  to 
be  applied.] 

But  it  is  a  use  totally  distinct  from  that  to 
which  the  plaintiffs  applied  and  intended  to 
apply  it. 

[COCKBT'RN,  C.  -T.  The  two  parties  cer- 
tainly had  not  in  th(Mr  common  contemplation 


ilic  application  of  this  vessel  to  any  one  spe- 
cilic  puri)ose.  The  plaintiffs  intended  to  ap- 
ply il  in  their  trade,  but  to  the  special  pur- 
pose of  transshijjping  coals;  the  defendants  be- 
lieved that  the  plaintiffs  would  apply  it  to  the 
purpose  of  their  trade,  but  as  a  coal  store. 
1  cannot,  however,  assent  to  tli(>  proposition 
that,  because  the  seller  does  not  know  the  pur- 
pose to  which  the  buyer  intends  to  apply  the 
thing  bought,  but  believes  that  the  buyer  is 
going  to  apply  it  to  some  other  and  ditt'erent 
purpose,  if  the  buyer  sustains  damage  from 
the  non-delivery  of  the  thing,  he  is  to  be  shut 
out  from  recovering  any  damages  in  resiiect 
of  the  loss  he  may  have  sustained.  I  take  the 
true  proposition  to  be  this.  If  the  special  pur- 
pose from  which  the  larger  profit  maj'  be  ob- 
tained is  known  to  the  seller,  he  may  be  made 
res])onsible  to  the  full  extent.  But  if  the  two 
parties  are  not  ad  idem  (pioad  the  use  to  which 
the  article  is  to  be  applied,  then  you  can  only 
take  as  the  measure  of  damages  the  profit 
which  would  result  from  the  ordinary  use  of 
the  article  for  the  purpose  for  which  the  seller 
supposed  it  was  bought.  And  the  arhitr.ator. 
as  I  understand  it,  finds  that  the  hull  was 
capable  of  being  applied  profitably  as  a  co;il 
store;  if  it  had  not  been  applied  by  the  plain- 
tiffs to  their  special  purpose.] 

But  no  vessel  of  the  sort  had  ever  been  ap- 
plied to  such  a  purpose  as  a  coal  store.  And 
this  kind  of  damage  is  a  damage  which  the 
plaintiffs  never  suffered,  and  which  they  nev- 
er  contemplated  suffering. 

[MELLOR,  J.  It  was  the  most  ol»vious 
purpose  to  which  such  a  vessel  could  be 
applied  in  the  plaintiff's'  trade. 

[COCKBURN,  C.  J.  And  the  purpose  to 
which  it  may  be  fairly  supposed,  and  as  in 
fact  the  defendants  did  suppose,  that  the 
plaintiffs  would  have  applied  it,  had  they 
been  prevented  by  the  failure  of  the  ma- 
chinery, or  any  other  cause,  from  being 
able  to  apply  it  to  their  special  purpose. 
And  so  far  as  the  defendants,  the  sellers, 
expected  that  the  plaintiff's,  the  buyers, 
would  be  losers  by  their  non-delivery  of  the 
vessel  according  to  contract,  so  far  it  is  just 
and  right  that  the  defendants  should  be  re- 
sponsible in  damages.] 

That,  no  doubt,  would  be  a  just  rule; 
but  it  is  not  the  rule  laid  down  in  Hadley 
V.  Baxendale,  9  Exch.  341,  23  Law  J.  Exch. 
179. 

[BLACKBURN,  J.  That  argument  seems 
to  assume  that  the  principle  laid  down  In 
Hadley  v.  Baxendale,  9  Exch.  341,  23  Law 
J.  Ex:ch.  179,  is  that  the  damages  can  only 
be  what  both  parties  contemplated,  at  the 
time  of  making  the  contract,  would  be  the 
consequence  of  the  breach  of  it;  but  that 
is  not  the  principle  laid  down  in  Hadley  v. 
BaxendiTje,  9  Exch.  341,  23  Law  J.  Exch. 
179.  The  court  say:  "We  think  the  proper 
rule  in  such  a  case  as  the  present  is  this: 
Where    two    parlies    luive    made    a    contract 


122 


DIKKCT  AND   CONSEQUENTIAL  DAMAGES— IN   CONTKACT. 


which  one  of  them  has  broken,  the  damages 
which  the  other  party  ought  to  receive  in 
respect  of  such  breach  of  contract  should 
be  such  as  may  fairly  and  reasonably  be 
considered,  either  arising  naturaUy,  1.  e. 
according  to  the  usual  course  of  things,  from 
such  breach  of  contract  itself  [that  is  one 
alternative],  or  such  as  may  reasonably  be 
supposed  to  have  been  in  the  contemplation 
of  both  parties,  at  the  time  they  made  the 
contract,  as  the  probable  result  of  the 
breach  of  it."  Now,  in  the  present  case 
the  breach  of  contract  was  the  non-delivery 
at  the  agreed  time  of  a  hull  capable  of  be- 
ing used  as  a  hulk  for  storing  coals,  and  the 
consequences  that  would  naturally  arise 
from  such  non-delivery  of  it  would  be  that 
the  purchaser  would  not  be  able  to  earn 
money  by  its  use,  and  this  loss  of  profit 
during  the  delay  would  be  the  measure  of 
the  damages  caused  by  the  non-delivery.] 

But  the  purpose  supposed  by  the  defend- 
ants was  not  part  of  the  business  of  the 
plaintiffs,  the  hulk  trade  being  a  distinct 
branch;  so  that  it  is  impossible  to  say  that 
the  loss  of  profit  which  might  have  been  de- 
rived from  this  supposed  purpose  could  have 
reasonably  been  contemplated  as  the  nat- 
ural consequence  of  the  defendants'  breach 
of  contract. 

[MELLOR,  J.  That  is  tying  down  the  ar- 
bitrator's finding  too  strictly.  There  must 
be  some  profitable  purpose,  and  this  was  the 
most  obvious  profitable  purpose.  Suppose 
there  are  two  equally  profitable  but  distinct 
modes  of  using  the  same  thing,  and  the  buy- 
er contemplates  one  use,  and  the  seller  the 
other,  it  is  not  because  the  one  party  con- 
templated one  use  and  the  other  the  other, 
that  the  buyer  is  not  to  get  any  damages  at 
all.] 

The  answer  is,  such  a  case  is  not  within 
the  rule  in  Hadley  v.  Baxendale,  9  Exch. 
341,  23  Law  J.  Exch.  179. 

COCKBURN,  C.  J.  I  think  the  construc- 
tion which  Mr.  Coleridge  seeks  to  put  upon 
the  case  of  Hadley  v.  Baxendale,  9  Exch. 
341,  23  Law.  J.  Exch.  179,  is  not  the  correct 
construction  as  applicable  to  such  a  case 
as  this.  If  that  were  the  correct  consti'uc- 
tion,  it  would  be  attended  with  most  mis- 
chievous consequences,  because  this  would 
follow,  that  whenever  the  seller  was  not 
made  aware  of  the  particular  and  special 
purpose  to  which  the  buyer  intended  to 
apply  the  thing  bought,  but  thought  it  was 
for  some  other  purpose,  he  would  be  re- 
lieved entirely  from  making  any  compensa- 
tion to  the  buyer,  in  case  the  thing  was  not 
delivered  in  time,  and  so  loss  was  sustained 
by  the  buyer;  and  it  would  be  entirely  in 
the  power  of  the  seller  to  break  his  contract 
with  impunity.  That  would  necessarily  fol- 
low, if  Mr.  Coleridge's  interpretation  of  Had- 
ley V.   Baxendale,  9  Exch.  341,  23   Law  J. 


Exch.  179,  was  the  true  interpretation.  My 
Brother  BLACKBURN  has  pointed  out  that 
that  is  not  the  true  construction  of  the  lan- 
guage which  the  court  used  in  dehvering  judg- 
ment in  that  case.  As  I  said  in  the  course 
of  the  argument,  the  true  principle  is  this,^ 
that  although  the  buyer  may  have  sustained 
a  loss  from  the  non-delivery  of  an  article 
which  he  intended  to  apply  to  a  special 
purpose,  and  which,  if  applied  to  that  spe- 
cial purpose,  would  have  been  productive 
of  a  larger  amount  of  profit,  the  seller  can- 
not be  called  upon  to  make  good  that  loss 
if  it  was  not  within  the  scope  of  his  con- 
templation that  the  thing  would  be  applied 
to  the  purpose  from  which  such  larger  profit 
might  result;  and  although,  in  point  of  fact, 
the  buyer  does  sustain  damage  to  that 
extent,  it  would  not  be  reasonable  or  just 
that  the  seller  should  be  called  upon  to  pay 
it  to  that  extent;  but  to  the  extent  to  which 
the  seller  contemplated  that,  in  the  event 
of  his  not  fulfilling  his  contract  by  the  de- 
livery of  the  article,  the  profit  which  would 
be  realized  if  the  article  had  been  delivered 
would  be  lost  to  the  other  party,  to  that  ex- 
tent he  ought  to  pay.  The  buyer  has  lost 
the  larger  amount,  and  there  can  be  no 
hardship  or  injustice  in  making  the  seller 
liable  to  compensate  him  in  damages  so  far 
as  the  seller  understood  and  believed  that 
the  article  would  be  applied  to  the  ordinary 
purposes  to  which  it  was  capable  of  being 
applied.  I  think,  therefore,  that  ought  to 
be  the  measure  of  damages,  and  I  do  not 
see  that  there  is  anything  in  Hadley  v.  Bax- 
endale, 9  Exch.  341,  23  Law  J.  Exch.  179, 
which  at  all  conflicts  with  this. 

BLACKBURN,  J.  I  am  entirely  of  the  same 
opinion.  I  think  it  all  comes  round  to  this: 
The  measure  of  damages  when  a  party  has 
not  fulfilled  his  contract  is  what  might  be 
reasonably  expected  in  the  ordinary  course  of 
things  to  flow  from  the  non-fulfilment  of  the 
contract,  not  more  than  that,  but  what  might 
be  reasonably  expected  to  flow  from  the  non- 
fulfilment  of  the  contract  in  the  ordmary  state 
of  things,  and  to  be  the  natural  consequences 
of  it.  The  reason  why  the  damages  are  con- 
fined to  that  is,  I  think,  pretty  obvious,  viz. 
that  if  the  damage  were  exceptional  and  un- 
natural damage,  to  be  made  liable  for  that 
would  be  hard  upon  the  seller,  because  if  he 
had  known  what  the  consequence  would  be 
he  would  probably  have  stipulated  for  more 
time,  or,  at  all  events,  have  used  greater  exer- 
tions if  he  knew  that  that  extreme  mischief 
would  follow  from  the  non-fulfilment  of  his 
contract.  On  the  other  hand,  if  the  party  has 
knowledge  of  circumstances  which  would 
make  the  damages  more  extensive  than  they 
would  be  in  an  ordinary  case,  he  would  be 
liable  to  the  special  consequences,  because  he 
has  knowledge  of  the  circumstances  which 
would  make  the  natural  consequences  greater 
than  in  the  other  case.  But  Mr.  Coleridge's 
argument  would  come  to  this,  that  the  dam- 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN   CONTRACT. 


123 


ages  could  never  be  anythiug  but  what  both 
parties  contemplated;  and  where  the  buyer 
intended  to  apply  the  thing  to  a  purpose  which 
would  make  the  damages  greater,  and  did  not 
intend  to  apply  it  to  the  purpose  which  the 
seller  supposed  he  intended  to  apply  it,  the 
consequence  would  be  to  set  the  defendant 
free  altogether.  That  would  not  be  just,  and 
I  do  not  think  that  was  at  all  meant  to  be 
expressed  in  Iladley  v.  Baxendale,  9  Exch. 
341,  23  Law  J.  Exch.  179.  Here  the  arbitrator 
has  found  that  what  the  defendants  supposed 
when  they  were  agreeing  to  furnish  the  der- 
rick was  that  it  was  to  be  employed  in  the 
most  obvious  manner  to  earn  money,  which 
the  arbitrator  assesses  at  £420  during  the  six 
months  delay;  and,  as  I  believe  the  natural 
consequence  of  not  delivering  the  derrick  was 
that  that  sum  was  lost,  I  think  the  plaintiffs 
should  recover  to  that  extent 


MELLOR,  J.  I  am  entirely  of  the  same 
opinion.  The  question  is,  what  is  the  limit  of 
damages  which  are  to  be  given  against  the 
defendants  for  the  breach  of  this  contract? 
They  will  be  the  damages  naturally  resulting, 
and  which  might  reasonably  be  in  contempla- 
tion of  the  parties  as  likely  to  flow,  from  the 
breach  of  such  contract.  It  is  not  because  the 
parties  ai'e  not  precisely  ad  idem  as  to  the  use 
of  the  article  in  question  that  the  defendants 
are  not  to  pay  any  damages.  Both  parties 
contemplated  a  prohtable  use  of  the  derrick; 
and  when  one  finds  that  the  defendants  con- 
templated a  particular  use  of  it  as  the  ob- 
vious mode  in  which  it  might  be  used.  I  think 
as  against  the  plaintiffs  they  cannot  complain 
that  the  damages  do  not  extend  beyond  that 
which  they  contemplated  as  the  amount  likely 
to  result  from  their  own  breach  of  contract. 

Judgment  for  the  plaintiffs  accordingly. 


124 


DIRECT  AND   CONSEQUENTIAL  DAMAGES-IN   CONTRACT. 


HORNE  V.  MIDLAND  RY.  CO. 

(L.  R.  7  C.  P.  583.) 

Court  of  Common  Pleas.  Ti-inity  Term.    June  6, 
1872. 

The  plaiutiffs,  who  were  under  a  contract  to 
supply  a  quantity  of  mlUtary  shoes  to  Hick- 
son  &  Sons  in  London  (for  the  use  of  the 
French  army),  at  4s.  per  pair,  an  unusually 
high  price,  to  be  delivered  there  by  the  3d 
of  February,  1871,  sent  the  shoes  to  the  de- 
fendants" station  at  Kettering  in  time  to  be 
delivered  in  the  usual  course  in  the  evening 
of  that  day,  when  they  would  have  been  ac- 
cepted and  paid  for  by  the  consignee;  and  the 
station-master  had  notice  (which  for  the  pur- 
pose of  the  case  was  assumed  to  be  notice  to 
the  company)  at  the  time  that  the  plaintiffs 
were  under  a  contract  to  deliver  the  shoes 
by  the  3d,  and  that,  unk'ss  they  were  so  de- 
livered they  would  be  thrown  on  their  hands, 
but  no  notice  was  given  to  the  defendants 
that  the  contract  with  Hickson  &  Sons  was, 
owing  to  very  exceptional  circumstances,  not 
an  ordinary  contract.  The  shoes  not  arriving 
in  London  until  the  4th.  Hickson  &  Sous  re- 
jected them,  and  the  plaintiffs  were  ultimately 
obliged  to  sell  them  at  a  loss  of  Is.  3d.  per 
pair,— 2s.  9d.  per  pair  being  the  ordinary  mar- 
ket value. 

Sa^\bridge  &  Wrentmore,  for  plaintiffs. 
Beale,  Marigold  &  Beale,  for  defendants. 

WILLES,  J.  This  case  raises  a  very  nice 
question  upon  the  measure  of  damages  to 
which  a  common  carrier  is  liable  for  a  breach 
of  his  contract  to  carry  goods.  It  would 
seem  that  the  damages  which  he  is  to  pay 
,  for  a  late  delivery  should  be  the  amount  of 
t  the  loss  which  in  the  ordinary  course  of  things 
I  would  result  from  his  neglect.  The  ordinary 
consequence  of  the  non-delivery  of  the  goods 
here  on  the  3d  of  February  would  be  that  the 
consignee  might  reject  them,  and  so  they 
would  be  thrown  upon  the  market  generally, 
instead  of  going  to  the  particular  purchaser; 
and  the  measure  of  damages  would  ordinarily 
be  in  respect  of  the  trouble  to  which  the  con- 
signor would  be  put  in  disposing  of  them  to 
another  customer,  and  the  difference  between 
the  value  of  the  goods  on  the  3d  and  the 
amount  realized  by  a  reasonable  sale.  That 
prima  facie  would  be  the  sum  to  be  paid,  in 
the  absence  of  some  notice  to  the  carrier 
Avhich  would  render  him  liable  for  something 
more  special.  These  consequences  would  re- 
fer to  the  value  of  the  goods  at  the  time  of 
their  delivery  to  the  carrier,  the  goods  being 
consigned  to  an  ordinary  market  and  being 
goods  in  daily  use  and  not  subject  to  much 
tluctuatiou  in  price.  In  the  present  case,  talv- 
ing"2s.  9d.  per  pair  as  the  value  of  the  shoes, 
the  ordinary  damages  would  be  the  trouble 
the  plaintiff's  were  put  to  in  procuring  some 
one  to  take  them  at  that  price,  plus  the  dif- 
ference, if  any,  in  the  market  value  between 
the  3d  and  the  4th  of  February.     I  tind  noth- 


ing in  the  case  to  shew  that  there  was  any 
diminution  in  the  value  between  those  days. 
The  plaintiff's'  claim,  therefore,  in  that  re- 
spect, would  be  covered  by  the  £20  paid  into 
court. 

But  they  claim  to  be  entitled  to  £2G7  3s.  Od. 
over  and  above  that  sum,  on  the  ground  that 
these  shoes  had  been  sold  by  them  at  4s.  a 
pair  to  a  consignee  who  required  them  for  a 
contract  with  a  French  house  for  supply  to 
the  French  army,  which  price  he  would  have 
been  bound  to  pay  if  the  shoes  had  been  de- 
livered on  the  3d  of  February.     The  special 
price  which  the  consignee  had  agreed  to  pay 
was  the  consequence  of  the  extraordinary  de- 
mand arising  from  the  wants  of  the  French 
army;    and  the  refusal  of  the  consignee  to  ac- 
cept the  goods  on  the  4th  was  caused  by  the 
cessation  of  the   demand  for   shoes  of   that 
character  by  reason  of  the  war  having  come 
to  an  end.     The  market-price,  therefore,  we 
must  assume,  to  have  been  2s.  9d.  a  pair  when 
the  shoes  were  delivered  to  the  carriers;    and 
the  circumstance  which  caused  the  diff'erence 
was  that  the  plaintiff's  had  had  the  advantage 
of  a  contract  at  4s.  a  pair  before  the  extraor- 
dinary demand  had  ceased.     Was  that,  then, 
an  exceptional  contract?     It  was  not,  I  take 
it,  at  the  time  the  contract  was  entered  into; 
but  it  was  at  the  time  the  shoes  were  deliv- 
ered to  the  carriers.     The  plaiutiffs  sustained 
a  loss'  of  Is.  3d.  a  pair  on  the  4.595  pairs  of 
shoes  which  they  failed  to  deliver  in  pursu- 
ance of  their  contract.     It  was,  so  to  speak, 
a  penalty  thrown  upon  them  by  reason   of 
the  breach  of  contract.     In  that  point  of  view, 
the  contract  was  an  exceptional  one  at  the 
time  the  shoes  were  delivered  to  the  carriers; 
and  they  ought  to  have  been  informed  of  the 
fact  that  by  reason  of  special  circumstances 
the  sellers  would,  if  the  delivery  had  taken 
place  in  time,  have  been  entitled  to  receive 
from   the   consignee   a  larger   price   for   the 
shoes  than  they  would  have  been  entitled  to 
in  the  ordinary  course  of  trade.     It  must  be 
remembered  that  we  are  dealing  with  the  case 
of  a  common  carrier,  who  is  bound  to  accept 
the  goods.     It  would  be  hard  indeed  if  the 
law  were  to  fix  him  with  the  further  liability 
which  is  here  sought  to  be  imposed  upon  him, 
because  he  has  received  a  notice  Avhich  does 
not  disclose  the  special  and  exceptional  con- 
sequences which  will  or  may  result  from  a 
delayed    delivery.     I    think   the   law   in   this 
respect  has  gone  quite  as  far  as  good  sense 
warrants.     The  cases  as  to  the  measure  of 
damages  for  a  tort  do  not  apply  to  a  case 
of  contract.     That  was  suggested  in  a  case 
in  Bulstrode,— Everard  v.    Hopkins,   2  BuLst. 
332,— but  the  notion  was  corrected  in  Hadley 
v.  Baxendale,  9  Exch.  341,  23  Law  J.  Exch. 
179.     The  damages  are  to  be  limited  to  those 
that    are    the    natural    and    ordinary    conse- 
quences which  may  be  supposed  to  have  been 
in   the   contemplation   of   the   parties   at   the 
time  of  making  the  contract.     I  go  further. 
I  adhere  to  what  I  said  in  Saw-Mill  Co.  v. 
Nettleship,  L.  R.  3  C.  P.  499,  at  p.  509,  viz. 


•DIRECT  AND   CONSEQUENTIAL   DAMACES— IN   CONTUACT. 


12:. 


that  •'tin-  knowledge  must  be  brougjit  hom^to 
the  pai-ty  sought  to  be  charged,'  under  such 
'circumstances  that  he  must  know  that  the 
person  he  contracts  with  "reasonably  believes 
fiiat  he  accei)t<rth'e  cohTi-act  with  the  special 
con(IiT!o5~atlached  to  it."  Was  there  any 
notice  here  thani'ie  d(T"(nidants  would  hv  held 
accountable  for  the  particular  damages  now 
claimed?  In  the  ordinary  course  of  things, 
the  value  of  the  shoes  was  2s.  9d.  a  pair  at 
the  time  they  were  delivered  to  the  defend- 
ants to  be  carried.  There  was  no  change  in 
their  market  value  between  the  3d  of  February 
and  the  4th:  and  no  notice  to  the  carriers 
that  the  consignees  had  contracted  to  pay 
for  them  the  exceptioual  price  of  4s.  a  pair. 
The  defendants  had  no  notice  of  the  penalty, 
so  to  speak,  which  a  delay  in  the  delivery 
would  impose  upon  the  plaintiffs.  It  would, 
as  it  seems  to  me,  be  an  extraordinary  result 
to  arrive  at,  to  hold  that  a  mere  notice  to 
the  carriers  that  the  shoes  w'ould  be  thrown 
upon  the  hands  of  the  consignors  if  they  did 
not  reach  the  consignees  by  the  3d  of  Feb- 
ruary, should  fix  them  Avitli  so  large  a  claim, 
by  reason  of  facts  which  were  existing  in  the 
minds  of  the  consignors,  but  were  not  com- 
nuuiieated  to  the  carriers  at  the  time. 

For  these  reasons.  I  come  to  the  conclusion 
that  enough  lias  been  paid  into  court  to  cover 


all  llic  (laniMgcs  which  the  i)lainlilfs  are  en- 
titled to  recover,  and  that  there  must  be  ju(lg- 
nient  for  the  defendants. 

KEATING,  J.  I  am  of  the  same  opinion, 
upon  the  ground  stated  by  my  Brother 
WILLES,  viz.  that  the  damages  claimed  are 
the  Gousequencr-  not  of  that  which  could  have 
been  contemplated  by  the  parties,  but  of  an 
exceptioual  slate  of  things.  No  doubt,  a  car- 
rier who  fails  to  deliver  in  due  time  goods  en- 
trusted to  him  is  liable  in  damages  for  the 
ordinary  and  natural  conseiptences  of  his 
breacli  of  contract.  But  I  think,  giving  the  ful- 
lest effect  to  Hadley  v.  Baxendale.  [)  Exch.  :'Al. 
23  Law  J.  Exch.  179,  and  the  rule  there  laid 
down,  but  which  ought  not  to  be  extended,  . 
we  cannot  hold  the  defendants  liable  in  re- 
spect of  a  loss  residting  from  an  exceptional 
state  of  things  which  was  not  communicated 
to  them  at  the  time.  There  must,  if  it  be 
sought  to  charge  the  carrier  with  consequen- 
ces so  onerous,  be  distinct  evidence  that  lu> 
had  notice  of  the  facts  and  assented  to  ac- 
cept the  contract  upon  those  terms.  That 
evidence  is  not  disclosed  in  this  case. 

Judgment  for  the  defendants. 

NOTE.      See  this  case  atiirnied   in   exclu'quer 
chamhor.  L.  R.  S  C.  P.  131. 


12G 


DIHECT  AKD  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


GRIFFIN  V.  COLVER  et  al. 

(16  N.  Y.  489.) 

Court  of  Appeals  of  New  York,  March  Term. 
1858. 

Action  to  recover  the  purchase  price  of  an 
ensine.  Defendants  sought  to  recoup  dam- 
ages lor  delay  in  delivery  of  the  engine. 
There  was  a  judgment  for  plaintiff,  from 
which  defendants  appealed. 

John  C.  Churchill,  for  appellants.  D.  Coats, 
for  respondent. 

SELDEN,  J.    The  only  point  made  by  the 
appellants  is  that  in  estimating  their  dam- 
ages on  account  of  the  plaintiff's  failure  to 
furnish  the  engine  by  the  time  specified  in 
'the  contract,  they  should  have  been  allowed 
what   the   proof   showed   they    might    have 
earned  by  the  use  of  such  engine,  together 
with  their  other  machinery,  during  the  time 
1  lost  by  the  delay.    This  claim  was  objected 
I  to,  and  rejected   upon  the  trial  as  coming 
within  the  rule  which  precludes  the  allow- 
ance of  profits,  by  way  of  damages,  for  the 
breach  of  an  executory  contract. 

To  determine   whether  this  rule  was  cor- 
rectly applied  by  the  referee,  it  is  necessary 
to   recur   to  the   i-eason   upon   which    it    is 
founded.    It  is  not  a  primary  i-ule,  but  is  a 
mere  deduction  from  that  more  general  and 
fundamental   rule   which   requires  that   the 
damages    claimed    should    in    all    cases    be 
.«;hown,  by  clear  and  satisfactory  evidence, 
to   have   been   actually   sustained.    It   is   a 
I  well-established    rule    of    the    common    law 
I  that   the    damages    to    be   recovered    for    a 
breach  of  contract  must  be  shown  with  cer- 
tainty, and  not  left  to  speculation  or  conjec- 
ture;   and  it  is  under  this  rule  that  profits 
are  excluded  from  the  estimate  of  damages 
in  such  cases,  and  not  because  there  is  any 
\  thing  in  their  nature  which  should   per  se 
{ prevent     their     allowance.     Profits     which 
j  wotild  certainly  have  been  realized  but  for 
the  defendant's  default  are  recoverable;  those 
1  which  are  speculative  or  contingent  are  not. 
Hence,  in  an  action  for  the  breach   of  a 
contract  to  transport  goods,   the   difference 
between  the  price,  at  the  point  where  the 
goods  are  and  that  to  which  they  were  to 
be  transported,  is  taken  as  the  measure  of 
damages;   and  in  an  action  against  a  vendor 
for  not  delivering  the  chattels  sold,  the  ven- 
dee is  allowed  the  market  price  upon  the 
day   fixed  for  the  delivery.    Although   this, 
in  both  cases,  amounts  to  an  allowance  of 
profits,  yet,  as  those  profits  do  not  depend 
upon  any  contingency,  their  recovery  is  per- 
mitted.   It  is  regarded  as  certain  that  the 
goods    would    have   been    worth    the   estab- 
lished market  price  at  the  place  and  on  the 
day  when  and  where  they  should  have  been 
delivered. 

On  the  other  hand,  in  cases  of  illegal  cap- 
ture, or  of  the  insiu-ance  of  goods  lost  at  sea, 
there  can  be  no  recovery  for  the  probable 
loss  of  profits  at  the  port  of  destination.    The 


principal  reason  for  the  difference  between 
these  cases  and  that  of  the  failure  to  trans- 
port goods  upon  land  is,  that  in  the  latter 
case  the  time  when  the  goods  should  have 
been  delivered,  and  consequently  that  when 
the  market  price  is  to  be  taken,  can  be  as- 
certained with  i-easonable  certainty;  wh'le 
in  the  former  the  fluctuation  of  the  mar- 
kets and  the  contingencies  affecting  the 
length  of  the  voyage  render  every  calcula- 
tion of  profits  speculative  and  unsafe. 

There  is  also  an  additional  reason,  viz. 
the  difficulty  of  obtaining  reliable  evidence 
as  to  the  state  of  the  markets  in  foreign 
ports;  that  these  are  the  true  reasons  is 
shown  by  the  language  of  Mr.  Justice  Story 
in  the  case  of  The  Lively,  1  Gall.  315,  Fed. 
Cas.  No.  8,403,  which  was  a  case  of  illegal 
capture.  He  says:  "Independent,  however, 
of  all  authority,  I  am  satisfied  upon  principle 
that  an  allowance  of  damages,  upon  the  basis 
of  a  calculation  of  profits,  is  inadmissible. 
The  rule  would  be  in  the  highest  degree  un- 
favorable to  the  interests  of  the  community. 
The  subject  would  be  involved  in  utter  un- 
certainty. The  calculation  would  pi-ocee<l 
upon  contingencies,  and  would  require  a 
knowledge  of  foreign  markets  to  an  exact- 
ness in  point  of  time  and  value  which  would 
sometimes  present  embarrassing  obstacles. 
Much  would  depend  upon  the  length  of  the 
voyage  and  the  season  of  the  amval;  much 
upon  the  vigilance  and  activity  of  the  master, 
and  much  upon  the  momentary  demand. 
After  all,  it  would  be  a  calculation  upon 
conjectures  and  not  upon  facts." 

Similar  language  is  used  in  thecases  of  The 
Amiable  Nancy,  3  Wheat.  546,  and  La  Amis- 
tad  de  Rues.  5  Wheat.  385.  Indeed,  it  is 
clear  that  whenever  profits  are  rejected  as 
an  item  of  damages  it  is  because  they  are 
subject  to  too  many  contingencies  and  ai^e 
too  dependent  upon  the  fluctuations  of  mar- 
kets and  the  chances  of  business  to  consti- 
tute a  safe  criterion  for  an  estimate  of  dam- 
ages. This  is  to  be  inferred  from  the  cases 
in  our  own  courts.  The  decision  in  the 
case  of  Blanchard  v.  Ely,  21  Wend.  342, 
must  have  pi-oceeded  upon  this  ground,  and 
can,  as  I  apprehend,  be  supported  upon  no 
other.  It  is  true  that  Judge  Cowen,  in  giv- 
ing his  opinion,  quotes  from  Pothier  the  fol- 
lowing rule  of  the  civil  law,  viz.:  "In  gen- 
eral, the  parties  are  deemed  to  have  con- 
templated only  the  damages  and  injury 
which  the  creditor  might  suffer  from  the 
non-performance  of  the  obligations  in  re- 
spect to  the  particular  thing  which  is  the 
object  of  it,  and  not  such  as  may  have  been 
accidentally  occasioned  thereby  in  respect  to 
his  own  (other)  affairs."  But  this  rule  had 
no  application  to  the  case  then  before  the 
court.  It  applies  only  to  cases  where,  by 
reason  of  special  circumstances  having  no 
necessary  connection  with  the  contract 
broken,  damages  are  sustained  which  would 
not  ordinarily  or  naturally  flow  from  such 
breach:    as  where  a  party  is  prevented  by 


lUilECT  AN  J.)   CON. SEQUENTIAL  i)AMAGE>— IN   LUNTiiACT. 


127 


the  breach  of  one  contract  from  availing 
himself  of  some  other  collateral  and  inde- 
pendent contract  entered  into  with  other  par- 
ties, or  from  performing  some  act  in  rela- 
tion to  his  own  business  not  uect'ssarily 
connected  with  the  agreement.  An  instance 
of  the  latter  kind  is  where  a  canon  of  the 
church,  by  reason  of  the  non-dolivory  of  a 
hoi-se  pursuant  to  agreement,  was  prevented 
from  arriving  at  his  residence  in  time  to  col- 
lect his  tithes. 

In  such  cases  the  damages  sustained  are 
disallowed,  not  because  they  are  luuertain, 
nor  because  they  are  merely  conseiiueutial 
or  remote,  but  because  they  cannot  be  fairly 
considered  as  having  been  within  the  con- 
templation of  the  parties  at  the  time  of 
entering  into  the  contract.  Hence  the  objec- 
tion is  removed,  if  it  is  shown  that  the  con- 
tract was  entered  into  for  the  express  pur- 
pose of  enabling  the  party  to  fulfill  his  col- 
lateral agreement,  or  perform  the  act  sup- 
posed.   Sedg.  Dam.  c.  3. 

In  Blanchard  v.  Ely  the  damages  claimed 
consisted  in  the  loss  of  the  use  of  the  very 
article  which  the  plaintiff  had  agreed  to 
construct;  and  were,  therefore,  in  the  plain- 
est sense,  the  direct  and  proximate  result  of 
the  breach  alleged.  Moreovei',  that  use  was 
contemplated  by  the  parties  in  entering  into 
the  contract,  and  constituted  the  object  for 
which  the  steamboat  was  built.  It  is  clear, 
therefore,  that  the  rule  of  Pothier  had  noth- 
ing to  do  with  the  case.  Those  damages 
must  then  have  been  disallowed,  because 
they  consisted  of  profits  depending,  not,  as 
in  the  case  of  a  contract  to  transport  goods, 
upon  a  mere  question  of  market  value,  but 
upon  the  fluctuations  of  travel  and  of  trade, 
and  many  other  contingencies.  The  cita- 
tion, by  Co  wen,  J.,  of  the  maritime  cases  to 
which  I  have  referred,  tends  to  confii-m  this 
view.  This  case,  therefore,  is  a  direct  au- 
thority in  support  of  the  doctrine  that  when- 
ever the  profits  claimed  depend  upon  con- 
tingencies of  the  character  referred  to,  they 
are  not  recoverable. 

The  case  of  Masterton  v.  Mayor,  etc.,  of 
Brooldyn,  7  Hill,  61,  decides  nothing  in  op- 
lX)sition  to  this  doctrine.  It  simply  goes  to 
support  the  other  branch  of  the  rule,  viz., 
that  profits  are  allowed  where  they  do  not 
depend  upon  the  chances  of  trade,  but  upon 
the  market  value  of  goods,  the  price  of  labor, 
the  cost  of  transportation,  and  other  ques- 
tions of  the  like  nature,  which  can  be  ren- 
dered reasonably  certain  by  evidence. 

From  these  authorities  and  principles  it  is 
clear  that  the  defendants  were  not  entitled 
to  measure  their  damages  by  estimating  what 
they  might  have  earned  by  the  use  of  the 
engine  and  their  other  machinery  had  the 
contract  been  complied  v»'ith.  Nearly  every 
element  entering  into  such  a  computation 
would  have  been  of  that  uncertain  character 
which  has  unifonnly  prevented  a  recovery 
for  speculative  profits. 
But  it  bv  no  means  follows  that  no  allow- 


ance could  be  made  to  the  defendants  for 
the  loss  of  the  use  of  their  machinery.  It  is 
an  error  to  suppose  tha,t  "the  law  does  not 
aim  at  complete  compensation  for  the  in- 
jury sustained,"  but  "seeks  rather  to  divide 
than  satisfy  the  loss."  Sedg.  Dam.  c.  3.  The 
broad,  general  rule  in  such  cases  is,  that 
the  party  injured  is  entitled  to  recover  all 
his  damages,  including  gains  prevented  as 
well  as  losses  sustained;  and  this  rule  is 
subject  to  but  two  conditions.  The  dam- 
ages must  he  such  as  may  fairly  be  sup-: 
posed  to  have  eutered  into  the  contempla^j 
tion  of  the  parties  when  they  made  the  con-;; 
tract;  that  is,  must  be  such  as  might  natu- 
rally be  expected  to  follow  its  violation;  and 
they  must  be  certain,  both  in  their  nature^ 
and  in  respect  to  the  cause  from  which  they; 
proceed. 

The  familiar  rules  on  the  subject  are  all 
subordinate  to  these.  For  instance:  That 
the  damages  must  flow  directly  and  natur- 
ally from  the  breach  of  contract,  is  a  mere 
mode  of  expressing  the  first;  and  that  they 
must  be  not  the  remote  but  proximate  con- 
sequence of  such  breach,  and  must  not  be 
speculative  or  contingent,  are  different  modi- 
fications of  the  last. 

These  two  conditions  are  entirely  separate 
and  independent,  and  to  blend  them  tends 
to  confusion;  thus  the  damages  claimed  may 
be  the  ordinary  and  natural,  and  even  nec- 
essary result  of  the  breach,  and  yet,  if  in 
their  nature  uncertain,  they  must  be  re- 
jected; as  in  the  case  of  Blanchard  v.  Ely, 
where  the  loss  of  the  trips  was  the  direct 
and  necessary  consequence  of  the  plaintiff's 
failure  to  perform.  So  they  may  be  definite 
and  certain,  and  clearly  consequent  upon  the 
breach  of  contract,  and  yet  if  such  as  would 
not  naturally  flow  from  such  breach,  but, 
for  some  special  circumstances,  collateral  to 
the  contract  itself  or  foreign  to  its  apparent 
object,  they  cannot  be  recovered;  as  in  the 
case  of  the  loss  by  the  clergyman  of  his 
tithes  by  reason  of  the  failure  to  deliveiT 
the  horse. 

Cases  not  unfrequently  occur  in  which 
both  these  conditions  are  fulfilled;  where  it 
is  certain  that  some  loss  has  been  svistained 
or  damage  incurred,  and  that  such  loss  or 
damage  is  the  direct,  immediate  and  natural 
conseiiuence  of  the  breach  of  contract,  but 
where  the  amount  of  the  damages  may  be 
estimated  in  a  variety  of  ways.  In  all  such 
cases  the  law,  in  strict  conformity  to  the 
principles  already  advanced,  imiformly 
adopts  that  mode  of  estimating  the  damages 
which  is  most  definite  and  certain.  The 
case  of  Freeman  v.  Clute,  3  Barb.  424,  is  a 
case  of  this  class,  and  affords  an  apt  illus- 
tration of  the  rule.  That  case  was  identical 
in  many  of  its  features  with  the  present. 
The  contract  there  was  to  construct  a  steam 
engine  to  be  used  in  the  process  of  manu- 
facturing oil,  and  damages  were  claimed  for 
delay  in  furnishing  it.  It  was  insisted  in 
that  case,  as  in  this,  that  the  damages  were 


i-:8 


DIIIECT  A^D  COXSEQUENTIAL  DAMAGES— IN   CONTRACT. 


to  be  estimated  by  ascertaining  the  amount 
of  business  wliich  could  have  been  done  by 
the  use  of  the  engine,  and  the  profits  that 
would  have  thence  accrued.  This  claim  was 
rejected  by  Mr.  Justice  Harris,  before  whom 
the  cause  was  trietl,  upon  the  precise  ground 
taken  here.  But  he,  nevertheless,  held  that 
compensation  was  to  be  allowed  for  the  "loss 
of  the  use  of  the  plaintiff's  mill  and  other 
machinery."  He  did  not,  it  is  true,  specify 
in  terms  the  mode  in  which  the  value  of 
such  use  was  to  be  estimated;  but  as  he  had 
previously  rejected  the  probable  profits  of 
the  business  as  the  measure  of  such  value, 
no  other  appropriate  data  Avould  seem  to 
have  remained  but  the  fair  rent  or  hire  of 
the  mill  and  machinei-y;  and  such  I  have  no 
doubt  was  the  meaning  of  the  judge.  Thus 
understood,  the  decision  in  that  case,  and 
the  reasoning  upon  which  it  Avas  based,  were, 
I  think,  entirely  accurate. 

Had  the  defendants  in  the  case  of  Blan- 
chard  v.  Ely,  supra,  taken  the  ground  that 
they  wei-e  entitled  to  recoup,  not  the  uncer- 
tain and  contingent  profits  of  the  trips  lost, 
but  such  sum  as  they  could  have  realized  by 
chartering  the  boat  for  those  trips,  I  think 
their  claim  must  have  been  sustained.  The 
loss  of  the  trips,  which  had  certainly  oc- 
curred, was  not  only  the  direct  but  the  im- 
mediate and  necessary  resul:  of  the  bi-each 
of  the  plaintiffs'  contract. 

The  rent  of  a  mill  or  other  similar  prop- 
erty, the  price  which  should  be  paid  for  the 
charter  of  a  steamboat,  or  the  use  of  ma- 
chinery,   etc.,   are   not   only    susceptible   of 


more  exact  and  definite  proof,  but,  in  a  ma- 
jority of  cases  Avould,  I  think,  be  found  to 
be  a  more  accuiute  measure  of  the  damages 
actually  sustained  in  the  class  of  cases  re- 
ferred to,  considering  the  contingencies  and 
hazards  attending  the  prosecution  of  most 
kinds  of  business,  than  any  estimate  of  an- 
ticipated profits;  just  as  the  ordinary  rate 
of  interest  is,  upon  the  whole,  a  more  accu- 
rate measure  of  the  damages  sustained  in 
consequence  of  the  non-payment  of  a  debt 
than  any  speculative  profit  which  the  credit- 
or might  expect  to  i-ealize  from  the  use  of 
the  money.  It  is  no  answer  to  this  to  say 
that,  in  estimating  what  would  be  the  fair 
rent  of  a  mill,  we  must  take  into  considera- 
tion all  the  risks  of  the  business  in  which  it 
is  to  be  used.  Rents  are  graduated  accord- 
ing to  the  value  of  the  property  and  to  an 
average  of  profits  arrived  at  by  very  ex- 
tended observation;  and  so  accurate  are  the 
results  of  experience  in  this  respect  that 
rents  are  rendered  nearly  if  not  quite  as  cer- 
tain as  the  market  value  of  commodities  at 
a  particular  time  and  place. 

The  proper  rule  for  estimating  this  por- 
tion of  the  damages  in  the  present  case  was. 
to  ascertain  what  would  have  been  a  fair 
price  to  pay  for  the  use  of  the  engine  and 
machinery,  in  view  of  all  the  hazards  and 
chances  of  the  business;  and  this  is  the  nile 
which  I  understand  the  referee  to  have 
adopted.  There  is  no  error  in  the  other  al- 
lowances made  by  the  referee.  The  judg- 
ment should,  therefore,  be  affirmed. 

Judgment  affirmed. 


DIRECT  AND   CONSEQUENTIAL  DAMAGES-IN   CONTRACT. 


129 


LEONARD  V.  NEW  YORK,  A.  &  B.   ELEC- 
TRO-MAGNETIC  TKL.   CO.i 

(41  N.  Y.  5-14.) 

Court  of  Apiieals  of  New  York.     ISTO. 

The  defeutlauls  iu  IS.jG  owned  and  oper- 
ated a  telegraph  between  Buft'alo  and  New 
York,  connecting  at  Buffalo  with  the  AVestern 
Union  Telegraph  Company  to  Chicago,  and 
at  Sjracuse  with  a^  line  to  Oswego.  The 
phiintiffs  Avere  manufacturers  of,  and  dealers 
iu  salt,  at  Syracuse,  and  had  agents,  Magill 
<fc  Pickering  at  Chicago,  and  Staats  at  Os- 
wego. Magill  &  Pickering  had  authority  to 
order  salt  from  Staats  for  sale  at  Chicago. 

On  Sept.  24,  ISoG,  Magill  &  Pickering,  act- 
ing for  plamtift's,  delivered  to  the  Western 
L'niou  Company  at  Chicago,  a  dispatch  to 
be  sent  to  Staats  at  Oswego,  as  follows: 
"D.  B.  Staats,  Oswego:  Send  5,000  sacks  of 
salt  immediately.  Magill  &.  Pickering."  And 
paid  the  usual  charges  for  transmission.  The 
dispatch  was  sent  by  the  Western  Union 
Company  to  Buffalo,  and  there  delivered  to 
the  agent  of  the  defendants.  It  was  trans- 
mitted by  the  defendants  over  their  line  to 
Syracuse;  and  in  transcribing  it  at  this  point 
for  the  purpose  of  delivery  to  the  Oswego 
line,  the  agent  of  defendants  negligently 
wrote  the  word  "casks"  in  place  of  "sacks," 
so  that  when  the  message  was  delivered  to 
the  Oswego  line,  and  by  that  line  to  Staats, 
it  read  as  follows:  "D.  B.  Staats,  Oswego: 
Send  5,000  casks  of  salt  immediately.  Magill 
&  Pickering." 

The  term  "sacks"  in  the  salt  trade  desig- 
nates fine  salt  in  sacks  containing  fourteen 
pounds,  and  the  term  "casks"  designates 
coarse  salt  in  packages  containing  not  less 
than  three  hundred  and  twenty  pounds. 

Staats  received  the  telegram  on  the  after- 
noon of  Sept.  24,  18.56,  and  that  evening  or 
the  next  morning,  chartered  the  schooner  S. 
H.  Lathrop.  to  take  the  salt  to  Chicago,  and 
shipped  by  her  2,7332  oo/,,,^  barrels  of  coarse 
salt.  As  soon  as  Staats  received  the  dis- 
patch he  telegraphed  to  plaintiffs  at  Syra- 
cuse as  follows:  "Shall  I  ship  Magill  & 
Pickering  5,000  casks?  Just  received  or- 
der." On  Sept.  25,  plaintiffs  answered  Staats 
by  telegram,  as  follows:  "You  may  ship 
Magill  &  Pickering  the  5,000."  The  last  dis- 
patch was  received  by  Staats  on  the  25th, 
and  on  the  same  day  he  telegraphed  plain- 
tiffs: "Ship  along  immediately;  fleet  in, 
Magill  &  Pickering  telegraphed,  send  us  5,- 
000  casks  salt  immediately;  I  suppose 
coarse."  The  plaintiff's  received  the  last  dis- 
patch on  Sept.  25.  On  Sept.  26,  plaintiffs 
telegraphed  from  Syracuse  to  Magill  &  Pick- 
ering at  Chicago,  as  follows:  "What  kind  of 
salt  do  you  want?  Coarse  or  fine?  Answer." 
On  the  same  day  Magill  &  Pickering  answer- 

1  Opiuioiis  of  HUNT  and  LOTT.  J.J..  and  dis- 
senting opinions  of  WOODRUFF  and  DAN- 
IELS, J.I.,  omitted. 

LAW  DA:M.2d  Ed.-9 


ed  the  plaintiffs  as  follows:  "Three-quarters 
fine;  balance  coarse."  Plaintiffs  immediati'- 
ly,  on  same  day,  telegraphed  to  Staats  at  Os- 
wego as  follows:  "Magill  &  Pickering's  or- 
der is  three-quarters  fine;  balance  coarse." 
This  dispatch  was  not  received  by  Staats  un- 
til after  the  vessel  had  loaded  the  salt,  and 
the  bill  of  lading  had  been  signed  and  deliver- 
ed to  the  m:ister  of  the  vessel,  and  he  had 
received  his  clearance.  Between  the  morn- 
ing of  Sept.  24  and  the  night  of  Sept.  26,  no 
other  communication  passed  between  either 
Staats  and  plaintiffs  or  Staats  and  Magill  & 
Pickering,  or  between  plaintiffs  and  Magill 
&  Pickering.  The  last-mentioned  dispatch 
was  received  by  Staats  in  the  afternoon  of 
Sept.  26.  At  the  time  he  received  it  he  knew 
the  vessel  had  finished  loading,  and  supposed 
she  had  actually  left  the  Oswego  harbor,  but 
it  does  not  appear  that  he  made  any  effort 
wliatever  to  ascertain  whether  she  had  actu- 
ally sailed  or  not.  She  actually  sailed  the 
next  day,  Sept.  27,  but  not  before  five  o'clock 
in  the  morning.  On  Sept.  20,  Magill  &  Pick- 
ering sent  a  telegram  to  Staats.  as  follows: 
"Did  you  ship  us  any  bag  salt  last  week? 
Send  five  thousand  more  now."  On  Sept. 
30  Staats  replied  as  follows:  "Have  shipped 
no  bags;  will  by  next  vessel."  On  Oct.  2 
Magill  &  Pickering  sent  the  following  tele- 
gram to  Staats:  "Asked  you  to  send  5,000 
bags,  not  casks;  don't  send  any  more."  This 
dispatch  was  sent  on  notice  being  received 
by  Magill  &  Pickering  of  the  shipment  of  the 
salt  by  the  Lathrop. 

The  plaintiffs  did  not  know  at  the  time  of 
the  shipment  of  the  salt  in  question.  Ihe  con- 
dition of  the  market  iu  Chicago  for  coarse 
salt,  or  the  value  of  such  salt  at  that  place. 
The  cargo  of  salt  arrived  at  Chicago  on  Oct. 
15.  There  was  no  market  for  it  at  Chicago, 
and  Magill  &  Pickering  stored  it  at  the  ex- 
pense of  the  plaintiffs  until  1857,  when  it 
was  sold  for  less  than  one  dollar  per  barreL 
The  salt  was  worth  at  the  time  of  its  ship- 
ment in  Oswego,  $1.60  per  barrel.  The  cost 
of  transporting  the  same  to  Chicago,  exclu- 
sive of  insurance,  was  nearly  twenty-seven 
and  one-half  cents  per  barrel,  and  on  its  ar- 
rival at  Chicago  it  was  not  worth  at  that 
place  to  exceed  $1.25  per  barrel. 

The  referee  also  found  that  there  was  no 
negligence  on  the  part  of  the  plaintiffs  or  of 
Staats  in  shipping  the  salt  in  question,  or  in 
acting  upon  the  order  of  Magill  &  Pickering 
of  Sept.  24,  and  decided  as  questions  of  law, 
"that  the  failure  of  Staats  to  inquire  or  ascer- 
tain whether  the  vessel  containing  the  salt 
in  question  had  actually  left  the  Oswego  har- 
bor at  the  time  he  received  plaintiff's  dis- 
patch of  the  26th  of  Sept.,  or  to  make  any  ef- 
fort to  stay  the  shipment  of  said  salt  does  not 
constitute  such  negligence  on  the  part  of  the 
plaintiffs  or  their  agent  Staats.  as  will  relieve 
defendants  from  liability  in  the  premises." 
Also,  "that  the  measure  of  damages  to  which 
the  said  plaintiff's  are  entitled  is  the  difference 
in  the  value  of  the  salt  at  Oswego  and  Chi- 


130 


DIRECT  AND   CONSEQUENTIAL  DAMAGES— IN   CONTRACT. 


cago,  with  the  costs  of  transportation  added 
tliereto,  with  interest  from  the  time  of  the  ar- 
rival of  said  salt  at  Chicago."  Judgment  was 
attirmed. 

The  cause  was  submitted  in  June,  1868;  a 
reargumeut  was  ordered  in  Sept.  of  the  same 
year,  and  it  was  reargued  in  March,  1869; 
and  the  court  being  again  divided,  another  re- 
argument  was  ordered,  which  took  place  at 
the  January  term,  1870. 

Grosvenor  P.  Lowery,  for  appellants. 
Charles  Andrews,  for  respondent. 

EARL,  C.  J.  The  appellant  seeks  a  re- 
versal of  this  judgment  upon  two  grounds, 
and  unless  we  find  its  position  right  in  refer- 
ence to  one  or  both  of  them,  it  is  conceded 
that  the  judg-^meut  must  be  affirmed. 

1.  It  claims  that  the  plaintiffs'  agent, 
Staats,  was  guilty  of  negligence  in  not  stop- 
ping and  unloading  the  vessel,  after  he  re- 
ceived plaintiffs'  dispatch  of  the  26th  of 
September,  and  thus  avoiding  most  of  the 
damage  which  plaintiffs  sustained.  Before 
this  dispatch  was  received,  the  loading  of  the 
vessel  was  completed,  the  bill  of  lading  was 
signed  and  delivered  to  the  master,  and  he 
had  procured  his  clearance  from  the  port  of 
Oswego.  Staats  knew  these  facts,  and  knew 
also  that  it  was  usual  for  vessels,  at  that 
season  of  the  year,  to  hurry  their  departure. 
Relying  upon  these  facts,  and  supposing  the 
vessel  had  actually  sailed,  he  made  no  effort 
to  detain  her.  From  all  this,  the  referee 
found  that  there  was  no  negligence  on  the 
part  of  Staats,  and  I  see  no  good  reason  for 
disturbing  his  findings.  There  were  sufficient 
grounds  for  concluding,  in  good  faith,  that  the 
vessel  had  sailed;  the  facts  indicated  that  she- 
had  sailed,  and  I  do  not  see  how  Staats  could 
be  charged  with  the  want  of  ordinary  dili- 
gence, in  relying  upon  them.  The  greatest 
degree  of  diligence  would  doubtless  have  re- 
quired Staats  to  have  made  inquiries  for  the 
vessel,  after  he  received  the  dispatch.  But  he 
was  only  bound  to  ordinary  diligence,  and  I 
do  not  see  how  we  can  find  the  want  of  such 
a  degree  of  diligence  against  the  finding  of 
the  referee,  and  in  favor  of  a  party,  who 
upon  this  question,  has  the  affirmative.  Ham- 
ilton V.  McPherson,  28  N.  Y.  76;  Milton  v. 
Steamboat  Co.,  37  N.  Y.  210;  Costigan  v. 
Railroad  Co.,  2  Denio,  609;  Dorwin  v.  Pot- 
ter, 5  Denio,  306;   Shear.  &  R.  Neg.  §  598. 

But  aside  from  this,  it  is  by  no  means  cer- 
tain that  Staats  could  have  obtained  the  salt 
from  the  vessel,  if  he  had  made  the  effort 
He  had  made  a  valid  contract  to  have  the 
salt  transported  to  Chicago,  and  the  other 
party  to  the  contract  had  taken  possession 
of  the  salt,  and  entered  upon  the  execution 
of  the  contract.  What  right  had  Staats  to 
take  the  salt  away  from  him?  I  know  of  no 
process  of  law  by  which  he  could  have  done 
it.  And  what  right  did  the  defendants  have 
to  ask  Staats  to  violate  his  contract  with 
that  third  party,  in  order  to  shield   it  from 


the  consequences  of  its  own  wrong?  I  am 
therefore  clearly  of  the  opinion  that  the  al- 
leged negligence  furnishes  no  defense  to  the 
action. 

2.  It  is  also  claimed  that  the  referee  adopt- 
ed an  eiToneous  rule  of  daimages,  and  that 
the  plaintiffs  should  not  in  any  event  have  re- 
covered more  than  they  actually  disbursed 
for  freight  on  the  salt  to  Chicago.  The 
measure  of  damages  to  be  applied  to  cases  as 
they  arise  has  been  a  fruitful  subject  of  dis- 
cussion in  the  courts.  '  The  difficulty  is  not 
so  much  in  laying  down  general  rules,  as  in 
applying  them.  The  cardinal  rule  undoubted- 
ly is,  that  the  one  party  shall  recover  all  the 
daaiages  which  has  been  occasioned  by  the 
breach  of  contract  by  the  other  party.  But 
this  rule  is  modified  in  its  application  by  two 
others.  The  damages  must  flow  directly  and 
naturally  from  the  breach  of  contract,  and 
they  must  be  certain,  both  in  their  nature  and 
in  respect  to  the  cause  from  which  they  pro- 
ceed. Under  this  latter  rule  speculative,  con- 
tingent and  remote  damages,  which  cannot  be 
directly  traced  to  the  breach  complained  of, 
are  excluded.  Under  the  former  rale,  such 
damages  are  only  allowed  as  may  fairly  be 
supposed  to  have  entered  into  the  contempla- 
tion of  the  parties  when  they  made  the  con- 
tract, as  might  naturally  be  expected  to  fol- 
lov/  its  violation.  It  is  not  required  that  the 
parties  must  have  contemplated  the  actual 
damages  which  are  to  be  allowed.  But  the 
damages  must  be  such  as  the  parties  may 
fairly  be  supposed  to  have  contemplated 
when  they  made  the  contract.  Parties  enter- 
ing into  contracts  usually  contemplate  that 
they  will  be  performed,  and  not  that  th^y  will 
be  violated.  They  very  rarely  actually  con- 
template any  damages  which  would  flow  from 
any  breach,  and  very  frequently  have  not 
sufiicient  information  to  know  Avhat  such  dam- 
ages would  be.  As  both  parties  are  usually 
equafiy  bound  to  know  and  be  informed  of 
the  facts  pertaining  to  the  execution  or  breach 
of  a  contract  which  they  have  entered  into, 
I  think  a  more  precise  statement  of  this  rule 
is,  that  a  party  is  liable  for  all  the  direct 
damages  which  both  parties  to  the  contract 
would  have  contemplated  as  fiowing  from  its 
breach,  if  at  the  time  they  entered  into  it  they 
had  bestowed  proper  attention  upon  the  sub- 
ject, and  had  been  fully  informed  of  the 
facts.  In  this  case  then,  in  what  may  prop- 
erly be  called  the  fiction  of  law,  the  defend- 
ant must  be  presumed  to  have  known  that 
this  dispatch  was  an  order  for  salt,  as  an 
article  of  merchandise,  and  that  the  plaintiff 
would  fill  the  order  as  delivered;  and  that  if 
the  salt  was  shipped  to  Chicago,  it  would  be 
shipped  there  as  an  article  of  merchandise,  to 
be  sold  in  the  open  market.  And  the  market 
price  in  Chicago  being  less  than  the  market 
price  in  Oswego,  that  they  would  lose  the 
cost  of  transportation,  and  the  difference  be- 
tween the  market  price  at  Chicago  and  the 
market  price  at  Oswego.  I  think  therefore 
that   the   rule   of   damages   adopted   by    the 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


131 


referee  was  sufficiently  favorable  to  the  de- 
fendant. The  damages  allowed  were  certain, 
and  they  were  the  proximate,  direct  result  of 
the  breach. 

I  do  not  think,  under  the  facts  of  this  case, 
that  the  plaintiffs,  when  they  found  the  state 
of  the  Chicago  market,  were  bound  to  re-ship 
this  salt  to  Oswego.  For  any  thing  that  ap- 
pears in  this  case,  the  cost  of  transportation 
to  Oswego  would  have  been  equal  to  the  dif- 
ference in  the  market  price  between  the  two 
places.  Then  there  was  the  risk  of  the  lake 
transportation  at  that  season  of  the  year, 
and  the  uncertainty  in  the  Oswego  market 
Avhen  the  salt  should  again  be  landed  there. 
If  the  plaintiff  had  shipped  it,  and  it  had 
been  lost  upon  the  lake,  the  total  loss  would 
not  have  been  chargeable  to  the  defendant. 
By  the  wrongful  act  of  the  defendant,  the  salt 
had  been  placed  in  Chicago,  one  of  the  largest 
commercial  centers  in  the  country,  and  the 
plaintiffs  had  the  right  to  sell  it  there  in  good 


faith,  and  hold  the  defendant  liable  for  the 
loss. 

I  have  therefore  reached  the  conclusion  that 
the  judgment  must  be  affirmed;  and  in  reach- 
ing this  conclusion,  I  believe  I  am  sustained 
by  principles  well  settled,  and  by  adjudged 
cases  quite  analogous.  Sedg.  Dam.  37;  Had- 
ley  V.  Baxcndale,  9  Exch.  341;  Saw  Mill  Co. 
V.  Nettleship,  L.  R.  3  C.  P.  499,  50S;  Wilson 
V.  Dock  Co.,  L.  R.  1  Exch.  177;  Grithn  v. 
Colver,  16  N.  Y.  489;  Hamilton  v.  McPherson, 
28  N.  Y.  72;  Kent  v.  Railroad  Co.,  22  Barb. 
278;  Medbury  v.  Railroad  Co.,  2G  Barb.  564; 
Scoville  V.  Griffith,  12  N.  Y.  509;  Cutting  v. 
Railway  Co.,  13  Allen,  381;  Squires  v.  Tele- 
graph Co.,  98  Mass.  2.32;  Telegraph  Co.  v. 
Weuger,  55  Pa.  St.  262;  Telegraph  Co.  v. 
Dryburg,  35  Pa.  St  298;  Williams  v.  Barton, 
13  La.  404. 

Judgment  affirmed,   with  costs. 

GROVER,   J.,   dissents. 


132 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IX  CONTKACT. 


BOOTH  V.  SPUYTEN  DUYVIL  ROLLING 
MILL  CO. 

(60  N.  Y.  489.) 
Court-  of  Appeals  of  New  York.  1875. 
Action  against  tlie  Spuyten  Duyvil  Rolling 
Mill  Company  for  breach  of  a  conti-act  to 
make  and  deliver  by  a  certain  date  a  quan- 
tity of  steel  caps  for  rails.  At  tbe  time  of 
making  the  contract,  defendant  was  inform- 
ed that  the  caps  were  to  be  used  in  making 
rails  to  fill  a  contract  which  plaintiff  had 
made  with  the  New  York  Central  Railroad 
Company,  but  defendant  was  not  informed 
as  to  what  price  plaintiff  was  to  receive  for 
the  rails.  Both  parties  knew  that  the  caps 
could  not  be  prociu'ed  elsewhere  in  time  to 
fill  the  sub-contract.  The  caps  alone  had  no 
market  value.  Defendant's  mill  was  burned 
before  the  time  for  fm-nishing  the  caps  had 
expired,  and  they  were  never  furnished. 
There  was  a  judgment  for  plaintiff,  from 
which  defendant  appealed. 

CHURCH,  C.  J.  The  point  made,  that  the 
destruction  of  the  mill  by  fire  was  an  excuse 
for  the  non-perfoi-mance  of  the  contract  by 
the  defendant,  is  not  tenable.  In  the  first 
place  it  does  not  appear  nor  is  it  found  as  a 
fact,  that  the  burning  of  the  mill  prevented 
such  performance.  The  contract  was  made 
December  27th,  and  the  steel  caps  were  to 
be  delivered  on  the  1st  of  April  thereafter. 
The  mill  burned  on  the  10th  of  March;  and 
the  proper  construction  of  the  finding  is,  that 
the  defendant  was  prevented  after  that  time 
from  completing  the  conti'act,  but  there  was 
ample  time  prior  to  that  event  to  have  man- 
ufactured the  caps.  A  party  cannot  post- 
pone the  performance  of  such  a  contract  to 
the  last  moment  and  then  interpose  an  acci- 
dent to  excuse  it.  The  defendant  took  the 
responsibility  of  the  delay.  But  the  case  is 
not  within  the  principle  decided  in  Dexter  v. 
Norton,  47  N.  Y.  G2,  and  the  authorities  upon 
which  it  was  based.  That  principle  applies 
Avhen  it  is  apparent  that  the  parties  contem- 
plated the  continued  existence  of  a  particular 
person  or  thing  which  is  the  subject  of  the 
contract,  as  in  the  case  of  the  Musical  Hall 
destroyed  by  fire  (Taylor  y.  Caldwell,  3  Best 
&  S.  826);  in  the  case  of  an  apprentice  who 
became  permanently  ill  (Boast  v.  Frith,  L. 
R.  4  C.  P.  1);  and  of  a  woman  who,  from 
illnes>s,  was  unable  to  perform  as  a  pianist 
(Robinson  v.  Davison,  L.  R.  6  Exch.  269). 
In  these  and  analogous  cases  a  condition  is 
implied  that  the  person  or  thing  shall  con- 
tinue to  exist.  In  Dexter  v.  Norton,  supra, 
this  principle  was  applied  to  relieve  a  party 
from  damages  for  a  failure  to  deliver  prop- 
erty which  was  bvirnod  without  his  fault, 
but  it  has  no  application  to  a  case  of  this 
character.  There  was  no  pliysical  or  natural 
impossibility'  inherent  in  the  nature  of  the 
thing  to  be  performed,  upon  wliich  a  condi- 
tion that  the  mill  sho^lld  contimie  can  be 
predicated.    The    artieie    was   to    be    manu- 


factured and  delivered,  and  whether  by  that 
particular  machinery  or  in  that  mill  would 
not  be  deemed  material.  True,  the  conti-act 
specifies  the  mill  as  the  place,  but  it  neces- 
sarily has  no  importance,  except  as  designat- 
ing the  place  of  delivery.  For  aught  that  ap- 
pears, other  machinery  could  have  been  sub- 
stituted. The  defendant  agreed  to  furnish  a 
certain  manufactured  article  by  a  specified 
day,  and  it  cannot  be  excused  by  an  acci- 
dent, even  if  it  prevented  performance.  If 
it  sought  protection  against  such  a  contin- 
gency it  should  have  been  provided  for  in 
the  contract.  Harmony  v.  Bingham,  12  N. 
Y.  99;  Tompkins  v.  Dudley,  25  N.  Y.  272; 
School  Dist.  V.  Dauchy,  25  Conn.  530.  This 
case  belongs  to  a  class  clearly  distinguishable 
from  those  before  referred  to. 

The  more  important  question  relates  to  the 
proper  rule  of  damages.  The  referee  finds,^ 
that  prior  to  the  contract  with  the  defendant, 
the  plaintitf  had  contracted  with  the  New 
York  Central  Railroad  Company  to  sell  and 
deliver  to  it  by  the  1st  of  June,  four  hundred 
tons  of  rails  to  be  composed  of  an  iron  found- 
ation and  steel  caps,  for  the  invention  of 
which  the  plaintiff  had  obtained  a  patent; 
and  that  when  the  contract  was  made  with 
the  defendant  he  infoi-med  it  that  he  wanted 
the  caps  to  perform  the  contract;  that  if  they 
had  been  delivered  by  the  1st  of  April  the 
plaintiff  could  have  performed  his  contract; 
and  he  finds,  also,  facts  showing  that  the 
plaintiff  would  have  realized  the  amount  of 
profits  for  which  the  recovery  was  ordered. 

The  damages  for  which  a  party  may  re- 
cover for  a  breach  of  contract  are  such  as 
ordinarily  and  naturally  flow  from  the  non- 
performance. They  must  be  proximate  and 
certain,  or  capable  of  certain  ascertainment, 
and  not  remote,  speculative  or  contingent. 
It  is  presumed  that  the  parties  contemplate 
the  usual  and  natural  consequences  of  a 
breach  when  the  contract  is  made;  and  if 
the  contract  is  made  with  reference  to  spe- 
cial circumstances,  fixing  or  affecting  the 
amount  of  damages,  such  special  circum- 
stances are  regarded  within  the  contempla- 
tion of  the  parties,  and  damages  may  be  as- 
sessed accordingly.  For  a  breach  of  an  exec-  ' 
utory  contract  to  sell  and  deliver  personal ; 
property  the  measure  of  damages  is,  ordina- 
rily, the  dilTerence  between  the  contract-price 
and  the  market-value  of  the  article  at  the 
time  and  place  of  delivery;  but  if  the  contract 
is  made  to  enable  the  plaintiff  to  perform  a 
sub-contract,  the  terms  of  which  the  defend- 
ant knows,  he  may  be  held  liable  for  the 
difference  between  the  sub-contract-price  and 
the  principal  contract-price,  and  this  is  upon 
the  gi-ound  that  the  parties  have  impliedly 
fixed  the  measure  of  damages  themselves,  or 
rather  made  the  contract  upon  the  basis  of  a 
fixed  rule  by  which  they  may  be  assessed. 
The  authorities  cited  on  both  sides  recognize 
these  general  rules.  Griffin  v.  Colver,  16  N. 
Y.  489;  Berries  v.  Hutchinson,  114  E.  C.  L. 
445;    Horner  v.  Railroad  Co.,  L.  R.  7  C.  P. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


133 


587;    Hadley  v.   Baxendale,   2G  Law   &   Eq. 
SOS;     StockwelLv.    inielps,    34    N.    Y.    3G4; 
Messmore  v.   Lead  Co.,  40  N.  Y.  422;   Ran- 
dall V.  Raper,  OG  E.  C.  L.  82;  Parks  v.  Tool 
Co.,  54  N.  Y,  5SG;    Gary  v.  Iron  Works  Co., 
L.  R.  3  Q.  B.  181;    Smeed  v.  Foord,  1  El.  & 
Kl.  G02;    British  Col.  Co.  v.  Nettlcship,  L.  R. 
S  C.  P.  400;    Horner  v.  Railroad  Co.,  L.  R. 
8  Excli.  131.    The  difficulty  is  in  properly  ap- 
plying general  rules  to  the  facts  of  each  par- 
ticular case.    Here  it  is  found  in  substance 
that  the   contract  was  made   to   enable   the 
plaintiff  to  perform  his  contract  with  the  rail- 
road company,  and  that  this  was  known  to 
the  defendant.    It  is  insisted  however  that  as 
the  price  which  the  railroad  company  was  to 
pay  the  plaintiff  for  the  rails  was  not  com- 
municated to  the  defendant  it  cannot  be  said 
that  it  made  the  contract  with  reference  to 
such  price.    It  is  expressly  found  that  there 
was  no  market-price  for  the  steel  caps,  and 
ft  does  not  appear  that  there  was  any  market- 
price  for  the  completed  rail.    The  presump- 
tion is,  from  the  facts  proved,  that  there  was 
not.    It  was  a  new  article,  and  the  contract 
was  made  to  bring  it  into  use.    The  result  of 
the  able  and  elaborate  argument  of  the  learn- 
ed counsel  for  the  defendant  is,  that  in  such 
a  case,  that  is  when,  although  the  contract 
is  made  with  reference  to  and  to  enable  the 
plaintiff   to   perform   a   sub-contract,    yet  if 
the   terms   of  the  sub-contract,   as  to   price, 
are  unknown  to  the  vendor,  and  there  is  no 
market-price  for  the  article,  the  latter  is  not 
liable  for  any  damages,  or  what  is  the  same 
thing,    for   only    nominal    damages.    I    have 
examined  all  the  authorities  referred  to,  and 
I  do  not  find  any  which  countenances  such 
a  position,  and  there  is  no  reason  for  exempt- 
ing a  vendor  from  all  damages  in   such   a 
<;ase.    It  is  not  because  the  vendee  has  not 
suffered  loss,  as  he  has  lost  the  profits  of  his 
sub-contract;    it  is  not  because  such  profits 
are  uncertain,  as  they  are  fixed  and  definite, 
and  capable   of  being  ascertained  with  cer- 
tainty;   it  is  not  because  the  parties  did  not 
contract  with  reference  to  the  sub-contract, 
when  it  appears  that  the  contract  was  made 
for  the  purpose   of   enabling  the  vendee  to 
perform  it.    If  the  article  is  one  which  has 
a  market-price,  although  the  sub-contract  is 
contemplated,  there  is  some  reason  for  only 
imputing  to  the  vendor  the  contemplation  of 
a   sub-contract   at   that   price,   and    that   he 
should  not  be  held   for  exti'avagant  or  ex- 
ceptional damages  provided  for  in  the  sub- 
contract.   But    the    mere    circumstance    that 
the  vendor  does  not  know  the  precise  price 
specified  in  the  contract  will  not  exonerate 
him  entirely.    He  cannot  in  any  case  know 
the  precise  market-price  at  the  time  for  per- 
/   formance.    Knowledge  of  the  ainquut  of  dam- 
ages is  impracticable,  and  is  not  requisite. 
It  is  only  requisite  that  the  parties  should 
have   such  a   knowledge  of  special   circum- 
stances,  affecting  the  question  of  damages, 
:as  that  it  may  be  fairlj^  inferred  that  they 
contemplated  a  particular  rule  or  standard 


for  estimating  th -m.  and  entered  into  the) 
contract  upon  that  basis.  In  Hadley  v.  Bax- 
endale. 0  Exch.  341,  w-hich  is  a  leading  case 
on  the  subject  in  the  English  courts,  the 
court  after  speaking  of  the  general  rule,  says: 
"If  the  special  circumstances  imder  which  the 
contract  was  actuallj'  made  were  connuuiii- 
cated  by  the  plaintiffs  to  the  defendants,  and 
thus' known  to  both  parties,  the  damages  re- 
sulting from  the  breach  of  such  a  contract, 
which  they  Avould  reasonably  contemplate, 
would  be  the  amount  of  injuiy  which  would 
ordinarily  follow  from  a  breach  of  the  con- 
tract under  the  special  circumstances,  so 
known  and  commimicated." 

This  case  has  been  frequently  referred  to, 
and  the  rule  as  laid  down  somewhat  criti- 
cised; but  the  criticism  is  confined  to  the 
character  of  the  notice,  or  communication  of 
the  special  circumstances.  Some  of  the 
judges,  in  commenting  upon  it,  have  held 
that  a  bare  notice  of  special  consequences 
which  might  result  from  a  breach  of  the  con- 
tract, unless  under  such  circumstances  as  to 
imply  that  it  formed  the  basis  of  the  agree- 
ment, would  not  be  sufficient.  I  concur  with 
the  views  expressed  in  these  cases;  and  I 
do  not  think  the  court  in  Hadley  v.  Baxen- 
dale, intended  to  lay  down  any  different  doc- 
trine. See  authorities  before  cited.  Upon  the 
point  involved  here,  whether  the  defendant 
is  exempted  from  the  payment  of  any  dam- 
ages when  there  is  no  market-price,  and  the 
price  in  the  sub-contract  is  not  known,  there 
is  no  conflict  of  authority  that  I  have  been 
able  to  discover.  In  the  first  place,  there  is 
considerable  reason  for  the  position  that 
where  the  vendor  is  distinctly  informed  that 
the  purchase  is  made  to  enable  the  vendee 
to  fulfill  a  sub-contract,  and  knows  that  there 
is  no  market-price  for  the  article,  he  as- 
sumes the  risk  of  being  bound  by  the  price 
named  in  the  sub-contract,  whatever  that 
may  be,  but  it  is  unnecessary  to  go  to  that 
extent.  It  is  sufficient  to  hold,  what  appears 
to  me  to  be  clearly  just,  that  he  is  bound 
by  the  price,  unless  it  is  shown  that  such 
price  is  extravagant,  or  of  an  unusual  and 
exceptional  character.  The  presumption  is, 
that  the  price  at  which  the  property  was  sold 
was  its  fair  value,  and  that  is  to  be  taken  as 
the  market-price  for  the  purpose  of  adjusting 
the  damages  in  the  particular  case.  This 
presumption  arifees  here.  The  profits  were 
not  uni-easonable,  certainly  not  extravagant. 
About  fifteen  per  cent  was  allowed  for  profits, 
including  the  use  of  the  patent,  and  no  evi- 
dence was  offered,  or  claim  made,  that  the 
price  was  not  the  fair  value  of  the  article. 
We  must  assume  that  it  was,  and  hence 
within  the  contemplation  of  the  parties.  The 
case  of  Borries  v.  Hutchinson,  114  E.  C.  L. 
443,  is  quite  analogous  to  this.  The  article, 
caustic  soda,  was  purchased  to  be  sold  to  a 
foreign  correspondent,  which  the  defendant 
knew.  There  were  several  items  of  damage 
claimed.  The  profits  on  the  sub-contract 
were  conceded,  and  the  money  paid  into  court, 


134 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


but  tlie  court  held,  iu  passing  judgment,  that 
the  plaintiff  was  entitled  to  recover  such 
profits.  Erie,  C.  J.,  said:  "Here  the  ven- 
dor had  notice  that  the  vendee  was  buying 
tha  caustic  soda,  an  article  not  ordinarily- 
procurable  in  the  market,  for  the  purpose  of 
.esalo  to  a  sub-vendee,  on  the  continent.  He 
made  the  contract,  therefore,  with  the  knowl- 
edge that  the  buyers  were  buying  for  the 
purpose  of  fulfilling  a  contract  which  they 
had  made  with  a  merchant  abroad." 

The  case  of  Elbidger  v.  Ai-mstrong,  L.  R. 
i>  Q.  B.  473,  also  illustrates  the  rule.  That 
was  a  contract  for  the  purcliase  of  six  hun- 
dred and  sixty-six  sets  of  wheels  and  axles, 
which  the  plaintiff  designed  to  use  iu  the 
manufacture  of  wagons;  and  which  he  had 
contracted  to  sell  and  deliver  to  a  Russian 
company  by  a  certain  day,  or  forfeit  two 
roubles  a  day.  The  defendant  was  informed 
of  the  contract,  but  not  of  the  amount  of 
penalties.  Some  delay  occurred  in  the  de- 
livery, in  consequence  of  which  the  plaintiff 
had  to  pay  £100  in  penalties,  and  the  action 
was  brought  to  recover  that  sum.  There  was 
no  market  in  which  the  goods  could  be  ob- 
tained, and  the  same  point  was  made  there 
as  here,  that  the  plaintiff  was  only  entitled 
to  nominal  damages;  but  the  court  says: 
"When  from  the  nature  of  the  article,  there 
is  no  market  in  which  it  can  be  obtained, 
this  rule  (the  difference  between  the  contract 
and  market  value)  is  not  applicable,  but  it 
would  be  very  unjust  if,  in  such  cases,  the 
damages  must  be  nominal." 

It  is  true  that  the  court  held  that  the  plain- 
tiff could  not  recover  the  penalties  as  a  mat- 
ter of  right,  mainly  upon  the  ground  that 
such  a  consequence  was  not,  from  the  nature 
of  the  notice,  contemplated  by  the  parties; 
and  yet  the  judgment,  du'ecting  the  amount 
of  the  penalties  paid,  was  allowed  to  stand, 
as  being  a  sum  which  the  jury  might  reason- 
ably find.  CaiT  v.  Iron  Works  Co.,  L.  R.  3 
Q,  B.  181,  decided  that  when  the  article  pur- 
chased was  designed  by  the  purchaser  for  a 
peculiar  and  exceptional  purpose  unknown  to 
the  seller,  the  latter  was  nevertheless  liable 
for  the  damages  which  would  have  been  in- 
curred if  used  for  the  purpose  which  the 
seller  supposed  it  would  be  used  for. 

The  case  of  Horner  v.  Railway  Co.,  L.  R. 
8  C.  P.  134,  is  not  in  conflict  with  the  posi- 
tion of  the  plaintiff.  In  that  case  the  article 
had   a   well-known   market-value.    The   sub- 


conti-act  was  at  an  unusual  and  extravagant 
price,  of  which  the  defendant   was  not   in- 
formed.   Besides,  the  defendant  was  a  car- 
rier, and  it  was  seriously  doubted  by  some 
of  the  judges  whether  the  same  rule  would 
apply  to  a  carrier  as  to  a  vendor.    The  ques- 
tion in  all  these  cases  is,  what  was  the  con- 
tract? and  a  carrier  who  is  bound  to  take, 
property  offered  at  current  rates  would  not, 
perhaps,  be  brought  within  the  principle  by 
a  notice  of  ulterior  consequences,  unless  such 
responsibility  was  sought  to  be  imposed  as 
a  condition,  and  he.  have  an  opportunity  'to 
refuse  the  goods;   or  unless  a  special  contract 
at  increased  rates  was  shown.    The  decision 
was  placed  upon  the  ground  that  the  excep- 
tional price  was  not  within  the  contempla- 
tion of  the  parties.    The  authorities  in  this 
state  support  the  doctrine  of  liability  in  a 
case  like  this.    The  cases  of  Griffin  v.  Colver 
and  Messmore  v.  Lead  Co.,  supra,  especially 
the   latter,    decide   the   same   principle.    The 
defendant  in  that  case  was  informed  of  the 
price   of   the  sub-contract,   but  the    decision 
was  not  put   upon   that   ground.    This   case 
presents  all   the  elements  which  have  been 
recognized  for  the  application  of  the  rule  of 
liability.    The   plaintiff"  contracted   with  the 
defendant  expressly  to  enable  him  to  perform 
his  conti-act  with  the  railroad  company,  which 
the  defendant   knew.    The   goods   could   not 
have  been  obtained  elsewhere  in  time;    and 
in  consequence  of  the  failure  of  the  defend- 
ant   to    perforin    his    contract,   the    plaintiff 
lost  the  benefit  of  his  sub-contract.    It  is  not 
claimed   that   the   price   at   which   the  com- 
pleted rails  were  agreed  to  be  sold  was  ex- 
ti'avagant  or  above  their  value;   and  as  thei'e 
was  no  market-price  for  the  article,  the  fact 
that  the  defendant  was  not  informed  of  the 
precise  price  in  the  sub-contract  does  not  af- 
fect its  liability.    Nor  does  the  fact  that  the 
defendant's   contract   does  not  embrace   the 
entire  article  resold,  relieve  it  from  the  con- 
sequences   of    non-performance.     It    was    a 
material     portion     of     the     rail,     without 
which  it  could  not  be  made;    and  solely  b^ 
i-eason  of 'the  failure  of  the  defendant,  the 
plaintiff  failed  to  perform  his  contract,  and 
thereby  lost  the  amount  for   which  he   has 
recovered.    We  concur   with   the  opinion   of 
the  referee  and  coiu't  below,  in  their  views, 
holding  the  defendant  liable.    The  judgment 
must  be  affirmed.    All  concur. 
Judgment  affirmed. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IX  CONTRACT. 


13^ 


MATHER  V.  AMERICAN  EXP.  CO. 

(138  Mass.  55.) 

Supreme  Judicial  Court  of  Massachusetts. 
Hampshire.    Nov.   1,    lSS-1. 

Action  against  the  American  Express  Com- 
pany for  breach  of  a  contract  to  transport  a 
package  containing  an  architect's  plans  for  a 
house.  There  was  a  lindiug  for  plaintiff,  and 
defendant  excepted. 

J.  C.  Hammond,  for  plaintiff.  D.  W. 
Bond,  for  defendant. 

FIELD,  J.  It  is  not  denied  th.at  the  de- 
fendant is  liable  in  damages  for  the  reason- 
able cost  of  the  new  plans,  and  for  other  ex- 
penses, if  there  were  anj'  reasonably  incurred 
in  procuring  the  new  plans;  but  it  is  denied 
that  the  defendant  is  liable  in  damages  for 
the  delay  in  constructing  the  house  occasion- 
ed by  the  loss  of  the  plans.  It  is  assumed 
that  the  plans  had  no  market  value,  and 
were  only  useful  to  the  plaintiff.  The  rule 
of  damages  then  is  their  value  to  the  plain- 
tiff. As  new  plans  could  not  be  bought  in 
the  market  ready  made,  some  time  necessar- 
ily must  be  consumed  in  making  them,  and 
the  plaintiff  contends  that  the  value  of  the 
plans  for  immediate  use,  or  for  use  at  the 
time  he  would  have  received  them  from  Bos- 
ton, it"  the  defendant  had  duly  performed  its 
contract,  is  their  value  to  him,  and  that  this 
vaiue  is  made  up  of  the  cost  of  procuring  the 
new  plans  and  the  damages  occasioned  by 
the  delay.  Whatever  he  calls  it,  it  is  dam- 
ages for  the  delay  in  constiiicting  the  house, 
caused  by  the  loss  of  the  original  plans,  that 
he  seeks  to  recover.  It  does  not  appear  that 
the  defendant  had  notice  of  the  contents  of 
the  package  at  the  time  it  was  delivered  for 
transportation,   or  any   notice  or  knowledge 


that  the  plaintiff  nLei''.od  the  plans  for  the 
construction  of  a  house  which  he  had  begun 
to  build.  The  damages  caused  by  the  delay 
are  not  such  as  usually  and  naturally  arise 
solely  from  a  breach  of  the  contract  of  the 
defendant  to  carry  the  package  safely  to  its 
destination,  nor  were  they  within  the  rea- 
sonable contemplation  of  both  parties  to  this 
contract,  as  likely  to  arise  from  such  a 
breach.  The  fact  that  the  plans  had  a  spe- 
cial value  to  the  plaintiff,  and  could  not  be 
purchased,  does  not  touch  the  question  of  in- 
cluding in  the  damages  the  injuiy  to  the 
plaintiff  occasioned  by  reason  of  other  con- 
tracts which  he  had  made,  and  of  work  which 
he  had  undertaken  in  expectation  of  having 
the  plans  for  use  immediately,  or  after  the 
usual  delay  involved  in  sending  the  plans  to 
Boston,  and  in  having  them  traced  and  re- 
turned to  him.  Damages  for  such  injuiy  are 
not  given  unless  the  circumstances  are  such 
as  to  show  that  the  defendant  ought  fairly  to 
be  held  to  have  assumed  a  liability  therefor 
when  it  made  the  contract. 

We  think  that  Hadley  v.  Baxendale,  9 
Exch.  341,  which  has  been  cited  with  ap- 
proval by  this  court,  governs  this  case. 

The  case  of  Green  v.  Railroad  Co.,  128 
Mass.  221,  on  which  the  plaintiff  relies,  was 
an  action  to  recover  the  value  of  an  "oil 
painting,  the  portrait  of  tlie  plaintiff's  father."' 
The  opinion  attempts  to  lay  down  a  rule  for 
determining  the  value  of  such  a  painting 
when  the  plaintiff  had  no  other  portrait  of 
his  father,  and  when,  so  far  as  appears,  it 
had  no  market  value;  but  the  opinion  does 
not  discuss  any  question  of  damages  not  in- 
volved in  determining  the  value  of  the  por- 
trait to  the  plaintiff.  The  plaintiff  in  that 
case  made  no  claim  for  damages  occasioned 
by  a  loss  of  a  profitable  use  of  the  portrait. 

Exceptions  sustained. 


136 


DIHECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


ABBOTT  et  al.  v.  HAPGOOD  et  al. 

(22  N.  E.  907.  150  Mass.  248.) 

Supreme  Judicial  Court  of  Massachusetts. 
Worcester.    Nov.  29,  1889. 

Report    from    superior   court,    Worcester 
county;  Hammond,  Judge. 

This  is  an  action  brought  to  recover  damages 
for  breach  of  contracts  made  by  the  defendants 
to  furnish  tliePenn  Match  Company,  Limited, 
of  Philadeljihia,  certain  raacliines  used  in  the 
mimufacture  of  matches,  and  certain  match 
splints  for  the  manufacture  of  matches.  The 
said  contracts  are  the  same  which  were  be- 
fore t!ie  supreme  judicial  court  in  the  case  of 
Match  Co.  V.  Ilapgooil,  141  JNIass.  145,  7  N. 
E.  Rep.  22.  The  plaintiffs  in  this  writ  are 
described  as  "Eraneis  R.  Abbott,  Ciiarles 
Kee,  and  Wra.  B.  Kempton,  all  of  Philadel- 
phia, in  the  state  of  Pennsylvania,  as  they 
are  copartners  and  associated  togetlier  in 
business  under  the  (irm  naraeand  styleof  the 
•  Penn  Match  Company,  Limited.'  "  The  de- 
fendants did  not  call  attention  at  tlie  trial  to 
the  specific  fact  that  they  made  any  point  in 
defense  that  the  use  in  the  writ  of  the  pres- 
ent tense  of  the  verb  in  "as  they  are  co-part- 
ners" described  this  firm  as  it  existed  at  the 
date  of  the  writ,  viz.,  May  12,  188a.  It  had 
in  fact  appeared  in  the  plaintiffs'  testimony 
that  Kempton  had  been  in  the  business  only 
a  year  or  two,  and  was  not  connected  with  it 
at  all  when  this  suit  was  brougiit.  It  being 
agreed  that  the  questions  raised  by  the  de- 
murrer miglit  be  raised  at  tiie  trial  witli  the 
other  questions,  the  following  evidence  ma- 
terial to  the  questions  raised  by  tlie  report 
was  put  in:  The  plaintiffs  Abbott  and  Kee, 
with  one  William  Jirown,  entered  into  aeon- 
tract  under  the  act  of  ass^^mb]y  of  Pennsyl- 
vania approved  June  2,  1874.  Brown  died 
about  January  13,  1882,  and  the  affairs  of 
tliat  concern  were  wound  up,  and  a  release 
from  the  administrator  of  Brown's  estate  was 
given  February  7,  1882.  The  defendants  had 
sold  match  splints  to  said  concern,  and  had 
received  a  letter  dated  January  23,  1882, 
signed  "Penn  Maxgu  Co.,  Limited,  Eiian- 
>ois  R.  Abbott,  Tr., "  ordering  one  each  of  de- 
fendants' "setting"  and  "rolling-off "  ma- 
chines, and  at  the  time  of  the  contracts  sued 
on  were  making  said  ma.cliines.  About  the 
middle  of  February,  1882,  the  plaintiff  Kemp- 
ton  agreed  verbally  to  join  them  in  forming 
a  company,  under  the  said  statute  of  Penn- 
sylvania, of  the  same  name  as  tiie  former,  to 
prosecute  the  same  business  of  manufactur- 
ing matches,  in  Philadeljihia.  The  plaintiffs 
together  agreed  that  they  would  organize 
said  company  under  said  statute,  and  would 
build  a  factory  for  the  purpose  of  sucli  manu- 
factory, provided  they  could  get  the  machin- 
ery, such  as  is  mentioned  in  the  contracts 
sued  on.  Thereupon,  for  the  purpose  of  car- 
rying out  said  agicement,  and  in  the  name  of 
and  tortile  beneht  of  the  projected  company, 
the  plaintiffs  applied  to  the  defendants,  who 
made   the  contracts   in  question,   the  plain- 


tiffs made  known  to  the  defendants  that  the 
projected  company  would  j)roeeed  with  its 
organization,  and  would  cause  a  factoiy  to 
be  built  for  it  only  in  case  tliey  could  make  a 
contract  with  the  defendants  to  furnish  the 
machines.  Tlie  plaintiffs  told  the  defendants 
they  would  like  them  to  give  a  written  con- 
tract for  tlie  machines  already  ordered, — that 
is,  one  rolling-off  machine  and  one  setting 
machine, — and  also  attach  to  it  an  additional 
order  for  four  more  setting  maehinos  and 
one  rolling-off  machine.  After  some  conver- 
sation, tlie  defendants  signed  and  delivered 
the  contracts  sued  on.  After  the  contracts 
were  made,  the  plaintiffs  gave  up  the  idea  of 
buiMing  the  factory  jointly,  and  Abbott  and 
Kempton  proceeded  to  build  the  factory  for 
the  use  of  the  firm,  with  the  arrangement 
that  it  sho'jld  be  verbally  leased  to  the  Penn 
Match  Company,  Limited,  for  the  purpose  of 
transacting  its  l)usluess,  to-wit,  the  match 
business  the  plaintiffs  had  agreed  to  go  into. 
The  factory  was  completed  about  July  15, 
1882,  and  the  Penn  Match  Coiupany  paid 
rent  from  that  time.  On  October  3,  1882, 
the  plaintiffs  mr.de  an  agreement  to  carry  out 
the  arrangement  entered  into  in  February, 
1882,  and  no  business  was  done  until  after 
July  IStli,  wlieii  tlie  factory  was  finished,  ex- 
cept that  the  plaintiffs  made  some  match- 
boxes, with  a  view  preparatory  to  this  com- 
pany (the  Penn  Match  Company)  being  or- 
ganized, and  so  as  to  have  them  on  hand. 
The  records  required  by  the  statutes  of  Penn- 
sylvania, as  to  limited  partnerships,  were 
duly  made.  Evidence  was  offered  that  in 
May,  1882,  the  defendants,  after  some  letters 
stating  that  the  machines  would  soon  be 
made,  refused  to  jierform  said  contracts.  The 
plaintiffs  offered  evidence  of  damage  to  them, 
as  individuals,  independent  of  their  member- 
ship of  their  association.  They  likewise  of- 
fered evidence  of  expenses  incurred  and  dam- 
ages suflered  by  the  association  in  conse- 
quence of  the  defendants'  refusal  to  deliver 
tlie  machines  and  ^he  match  splints.  The 
defendants  put  in  the  judgment  for  the  de- 
fendants, which  vv'as  rendered  on  the  demui- 
rer  after  the  decision  of  the  supreme  judicial 
court  in  Match  Co.  v.  Ilapgood,  141  Mass. 
146,  7  N.  E.  Hep.  22. 

The  defendants  asked  the  couit  to  rule: 
(1)  There  is  no  evidence  to  warrant  a  verdict 
for  the  plaintiffs.  (2)  The  contracts  are  in 
terms  v.'ith  the  Penn  Match  Com[)any,  Lim- 
ited, and  that  company  was  not  organized  at 
the  time  of  the  contracts,  and  there  never  was 
any  contract  vvliich  would  bind  that  company, 
and  the  plaintiffs  cannot  recover.  (3)  The 
judgment  in  the  case  of  Penn  Match  Com- 
pany, Limited,  v.  Ilapgood  and  another  is  a 
a  bar  to  this  action.  (4)  If,  after  the  death 
of  Blown,  the  present  ]daintiffs  agreed  to- 
gether to  form  a  limited  partnership,  under 
the  statute  of  Pennsylvania,  which  has  been 
put  into  the  case,  for  the  manufacture  of 
matclies,  under  the  name  of  the  "Penn  Match 
Company,  Limited,"  and  with  the  purpose 
and  to  tiie  end  of  doing  so,  and  in  tlie  name 


DIRECT  AND  CONSEQUENTIAL  DAMAGE-:— IN   CONTRACT. 


137 


■of  and  for  the  bL'iiefit  of  tlie  projected  limited 
partnership  procured  tliese  contracts,  the 
aforesaid  judgment  is  a  bar  to  recovery  ia 
this  case.  The  court  declined  to  rule  as  re- 
quested by  the  defendants,  and  ruled  that  the 
dissociation,  by  the  agreement  of  October  3, 
1882,  is  so  far  different  from  the  organiza- 
tion of  the  plaintiffs,  as  general  partners, 
that  in  this  case  no  damages  sulfered  by 
the  association  can  be  assessed,  and  the 
only  damages  which  can  be  recovered  are 
sucli  as  tlie  plaintiffs  themselves  have  suf- 
fered independently  of  their  membership  of 
the  association.  The  phiintiffs  objected  and 
exce[)ted  to  this  ruling,  so  far  as  it  limit- 
ed damages.  The  court  overruled  the  de- 
fenda!its'  demuirer,  and  they  appealed;  the 
ruling  being  that  the  plaintiffs  could  ref'over 
such  damages  as  they  suffered  independently 
of  the  association  formed  under  the  statute, 
by  reason  of  the  non-perfoimance  of  the  con- 
tracts. A  verdict  was  directed  for  the  phiin- 
tiffs, with  the  understanding  that  the  case 
should  be  reported,  and  tlie  same  is  now  re- 
ported, for  the  determination  of  the  supreme 
judicial  court.  If  the  rulings  arecorrect,  the 
parties  agree  that  the  case  shall  be  sent  to  an 
assessor  to  assess  the  damages.  If  the  de- 
murrer should  have  been  sustained,  or  if,  up- 
on the  evidence,  a  verdict  should  have  been 
ordered  for  the  defendants,  the  verdict  is  to 
be  set  aside,  and  judgment  for  the  defendants 
entered;  unless  the  ground  for  ordering  judg- 
ment is  sucli  that  it  could  have  been  cured 
by  amendment,  if  it  had  been  pointed  out  at 
the  trial,  in  wliich  case  the  court  shall  enter 
sucli  judgment  or  order  as  shall  seem  just. 
If  the  phiintilfs  are  entitled  to  recover  such 
damages  as  were  suffered  by  the  association 
organized  under  the  agreement  of  October  3, 
1882,  the  verdict  is  to  be  set  aside,  and  a  new 
trial  ordered. 

W.  S.  B.  Hopkins,  for  plaintiffs.     F.  P. 
Goalding,  for  defendants. 

KN^OWLTON".  J.  According  to  the  terms 
of  the  repoitin  this  case,  if  the  demurrer 
should  have  been  sustained,  on  grounds  which 
could  have  been  removed  by  amendment,  the 
plaintiffs  are  to  be  permitted  to  amend.  The 
defendants  have  made  no  point  upon  the 
use  of  the  present  tense  instead  of  the  past 
tense  in  the  allegation  in  the  writ  as  to  the 
partnership  of  the  plaintiffs,  and,  if  that  is 
material,  it  may  be  corrected  by  amend- 
ment. In  each  count  of  the  declaration, 
after  alleging  that  there  was  a  valuable 
consideration  for  the  defendants'  contract, 
the  plaintiffs  aver  that  the  contract  was 
reduced  to  writing,  and  set  out  as  the 
contract  a  writing  wliich  shows  no  consider- 
ation nor  mutuality,  but  merely  an  undertak- 
ing on  one  side.  To  state  the  contract  truly, 
they  should  set  out  in  each  count  their  own 
agreement  which  constituted  the  considera- 
tion for  the  agreement  made  by  the  defend- 
ants. The  substantive  grounds  of  defense 
rest  upon  ttie  lulings.and  refusals  torule,  in 
regard  lo  the  elTect  of  tlie  evidence.     There 


was  an  attempt  to  recover  under  the  con- 
tracts now  before  us,  by  a  suit  lirougliL  in  the 
name  of  thePenn  JNIateh  Comj)any,  Limited, 
against  these  defendants.  In  th'at  case  the 
plaintiff  was  alleged  to  l)e  a  corporation,  and 
the  hearing  and  decision  were  upon  a  demur- 
rer which  admitted  that  allegation  to  be  true. 
If  we  assume  that  the  limited  partnt-r.ship 
organized  under  the  laws  of  Pennsylvania  was 
so  far  an  entity,  separate  from  the  persons 
who  were  members  of  it,  that  it  could  sue  and 
be  sued  in  this  commonwealtli  as  a  coipor- 
ation  can,  it  is  quite  clear  that  it  was  not  a 
party  to  the  contracts  declared  on.  Match 
Co.  v.  Ilapgood,  141  Mass.  145,  7  N.  E. 
Kep.  22.  If  a  contract  is  made  in  the 
name  and  for  the  benefit  of  a  projected 
corporation,  the  corporation,  after  its 
organization,  cannot  liecome  a  party  to 
the  contract,  even  by  adoption  or  ratifi- 
cation of  it.  Kelner  v.  I'axter,  L.  R.  2 
C.  P.  174;  Gunn  v.  Insurance  Co.,  12  C.  B. 
(N.  S.)  694;  Mellnido  v.  Railway  Co.,  L.  R.  9 
C.  P.  503;  In  re  Engineering  Co.,  L.  R.  16 
Ch.  Div.  125.  Upon  the  facts  reported  in 
the  present  case,  the  defendants,  as  well  as 
the  plaintiffs,  must  have  understood  that  the 
limited  partnership  was  only  projected,  and 
that  the  plaintiffs,  acting  jointly  as  individ- 
uals, or  as  general  jiarlners,  constituted  tlie 
only  party  who  could  contract  with  the  de- 
fendants in  the  manner  proposed.  It  is  evi- 
dent that  both  parties  intended  to  enter  into 
binding  contracts.  As  recited  in  the  report, 
for  the  purpose  of  carrying  out  their  agree- 
ment to  form  a  limited  partnership,  "and  in 
the  name  of  and  for  the  lienefit  of  the  project- 
ed company,  the  plaintiffs  aiqdied  to  the  de- 
fendants who  made  the  contracts  in  question, 
and  the  plaintiffs  made  known  to  the  defend- 
ants that  the  projected  company  would  pro- 
ceed witli  its  organization  and  would  cause 
a  factory  to  be  built  for  it,  only  in  case  tliey 
could  make  a  contract  with  the  defendants 
to  furnish  tlie  machines." 

We  are  of  opinion,  in  view  of  tire  facts 
known  to  both  parties,  tliat  the  plaintiffs 
must  be  deemed  to  have  been  jointly  con- 
tracting in  the  only  way  in  which  they  could 
lawfully  contract,  and  that  they  assumed  the 
name  "Penn  Match  Company,  Limited,"  as 
that  in  which  they  chose  to  do  business,  in 
reference  to  the  projected  limited  partneisliin, 
until  their  organization  should  be  completed, 
and  they  should  turn  over  the  business  to  the 
new  company,  which  would  be  composed  of 
themselves  in  anew  relation.  This  seems  to 
be  warranted  by  the  hmguage  of  the  repoit, 
and  entirely  consistent  with  their  piuj  ose 
made  known  to  the  defendants,  and  in  this 
way  only  can  effect  be  given  to  their  acts. 
The  judgment  in  the  former  suit  is  no  bar  to 
this  action,  for  that  suit  was  brought  by  a 
different  idaintitf. 

On  tiie  subject  of  damages,  tiie  report  does 
not  sufficiently  state  the  evidence  to  enaljie 
us  fully  to  determine  the  rights  of  the  parties. 
As  we  understand  the;  rule  laid  down  by  the 
presiding  justice,   that   "the   only   damages 


138 


DIRECT  AND  CONSEQUENTIAL  DAMAG^ES— IN  CON  Til  ACT. 


which  can  be  recovered  are  such  as  the  plain- 
tiffs themselves  liave  suffered  indeijondently 
of  their  membeiship  of  tlie  association,"  we 
are  of  opinion  that  it  is  too  narrow.  In  the 
view  which  we  talie  of  the  agreement,  tlie 
phiintiffs  contracted  for  articles  to  be  deliv- 
ered to  themselves.  They  informed  tlie  de- 
fendants that  they  had  agreed  to  organize  a 
limited  partnership,  of  which  they  were  to 
be  the  sole  members,  ami  that  they  made  the 
contracts  to  enable  them  profitably  to  carry 
on  business  in  their  new  organization.  By 
reason  of  the  defendants'  breath  of  contract, 
the  plaintiffs  were  unable  to  turn  over  to  the 
new  company  the  property  which  they  should 
have  received  for  that  purpose,  and  they  have 
been  unable  to  establish  that  company,  and 
start  it  in  its  work  under  such  favoiable  au- 
spices, and  with  such  an  equipment  for  the 
transaction  of  a  profitable  business,  as  if  the 
defendants  had  performed  their  contracts. 
The  only  damages  for  which  the  defendants  are 
liable  to  any  one  must  be  recovered  in  this 
action,  and,"^  inasmuch  as  the  machines  could 
not  be  procured  in  tlie  market,  we  are  of 
opinion  tliat  the  parties  must  be  presumed  to 
have  contracted  in  reference  to  the  declared 
purpose  for  which  they  were  to  be  furnished, 


and  that  that  purpose  may  be  considered  in 
assessing  the  damages.  Machine  Co.  v. 'Ry- 
der, 139  Mass.  366;  Manning  v.  Eitch,  138 
Mass.  273;  Townsend  v.  Wharf  Co.,  117  Mass. 
6U1;  Somers  v.  Wright,  115  Mass.  292;  Cory 
V.  Iron- Works,  L.  U.  3  Q.  B.  181;  Portman 
V.  Middleton,  4  C.  B.  (N.  S.)  322;  McHose  v. 
Fulmer,  73  Pa.  St.  365. 

We  do  not  intimate  that  the  plaintiffs  are 
to  receive  any  damages  as  members  of  the 
limited  partnership,  but  only  that  the  dam- 
ages which  they  suffered.  If  any,  by  reason 
of  the  defendants'  preventing  them  from  suc- 
cessfully establishing  and  fitting  out  a  busi- 
ness to  be  conducted  by  them  as  a  limited 
partnership,  may  be  recovered.  The  mere 
fact  that  they  arranged  to  conduct  their  busi- 
nessby  a  limited  partnership,  under  the  stat- 
ute of  Penr.sylvania,  does  not  deprive  them 
of  the  rights  whicli  they  then  had  in  the  busi- 
ness, nor  of  the  advantages  which  properly 
belonged  to  it.  The  value  of  the  articles  con- 
tracted for  may  be  estimated  in  reference  to 
their  intended  use  in  the  business  for  which 
the  defendants  were  to  furnish  them.  The 
plaintiffs  are  to  luive  leave  to  amend  their 
writ  and  declaration  as  they  shall  be  advised, 
and  the  case  is  to  stand  for  trial.     So  ordered. 


DliiECT  AND  CUN.'bEQUENTIAL  LtAMACIES— IN   CONTiiACT. 


139 


BROWNELL  et  al.  v.  CHAPMAN. 

(51  N.  W.  249,  84  Iowa,  504.) 
Supreme  Court  of  Iowa.     Feb.  2,  1892. 

Appeal  from  superior  court  of  Council 
Blufl's;  J.  E.  F.  McGee,  Judge. 

Action  on  a  contract,  in  substance  as  fol- 
lows: "April  12tli,  1889.  D.  Clinpman,  Esq., 
Council  Bluffs,  Iowa— Dear  Sir:  We  will 
furnish  j-ou  one  of  our  Scotch  marine  boil- 
ers, 54  dia.,  84  long,  made  of  G0,000  T.  S. 
marine  steel  shells,  5-10;  *  *  *  all  the 
above  delivered  and  set  up,  (3^ou  to  do  all 
wood-work,)— for  the  sum  of  ten  hundred 
and  twenty-three  dollars,  ($1,023.00.)  We 
will  allow  you  three  hundred  and  sixty  dol- 
lars (.1^300.00)  for  your  tw^o  engines,  boiler, 
heater,  and  iuspirater,  -wheels,  shafting,  and 
couplings.  Hoping  to  receive  your  order,  we 
are,  yours  tiiily,  Brow^iell  &  Co.  P.  S.  We 
guaranty  to  deliver  above  in  thirty  days  from 
April  loth.  It  is  understood  you  are  to  have 
90  days'  option  on  sale  of  engine  and  boiler 
you  have."  "Accepted.  D.  Chapman."  This 
action  is  to  recover  the  balance  of  the  con- 
tract price,  after  deducting  the  ?3G0  for  the 
defendant's  engines,  etc.  There  was  a  fail- 
ure to  deliver  the  boilers,  etc.,  on  the  part 
of  the  plaintiffs  for  some  18  days  after  the 
time  specified  in  the  contract;  and  the  de- 
fendant presents  a  counter-claim  because  of 
the  failure  and  for  defective  workmanship 
in  putting  in  the  boilers.  A  reply  put  in  is- 
sue certain  allegations  of  the  counter-claim, 
and  a  trial  by  jury,  resulting  in  a  verdict 
and  judgment  for  the  defendant  for  $31'.25. 
The  plaintiffs  appeal. 

Isaac  Adams,  for  appellants.  D.  B.  Daily, 
Emmet  Finley,  and  Ambrose  Burke,  for  ap- 
pellee. 

GRANGER,  J.  1.  Lake  Manana  is  a 
small  lake  in  the  vicinity  of  Council  Bluffs, 
in  Pottawattamie  county,  and  is  a  summer 
and  pleasure  resort.  Boats  are  used  on 
the  lake  for  the  accommodation  of  visitors, 
and  among  them  was  one  known  as  the  "M. 
F.  Rohrer,"  belonging  to  the  defendant.  The 
boat  was  operated  on  the  lake  in  the  season 
of  1888,  and  the  boilers  and  machinery  con- 
tracted for,  as  known  to  the  parties,  were  to 
refit  the  boat  for  use  in  the  season  of  1889. 
A  breach  of  the  contract  on  the  part  of 
plaintiff  by  a  failure  to  deliver  within  the 
time  is  not  questioned,  and  the  important 
question  on  this  appeal  is  as  to  the  proper 
measure  of  damage.  The  supenor  court  ad- 
mitted evidence  to  show,  and  instructed  the 
jui-y  on  the  theory,  that  the  measure  of  dam- 
age was  the  rental  value  of  the  boat  during 
the  time  the  defendant  was  deprived  of  its 
use  in  consequence  of  the  breach.  The  ap- 
pellants' thought  is  that  the  measure  of  dam- 
age is  the  "interest  of  the  capital  invested  in 
the  boat."  This  latter  rule  has  something 
of  support  in  authority,  but  it  is  far  out- 
weiglied  by  the  number  of  cases  and  the  rea- 


soning supporting  the  rule  adopted  by  the 
court.    In  considering  the  question  we  must 
keep   in    view   the   rule,    universally   recog- 
nized, that  the  damage  for  breach  of  con- 
tract must  fte  limited  to  such  as  would  nat- 
urally come  within  the  contemplation  of  the 
partio.s  at  the  time  the  contract  was  made. 
The  plaintiff,  when  it  agreed  to  furnish  and 
set  the  boilers,  knew  they  were  to  be  used 
in  operating  the  boat;  that  a  breach  on  its 
part  Avould  deprive  the  plaintiff  of  its  use; 
and  it  would  naturally  contemplate  the  value 
of  such  use  as  the  injury  that  Avould  be  sus- 
tained;   and  such  is,  as  a  matter  of  fact,  the 
actual  damage.     The  appellants  cite  a  num- 
ber of  cases,  but  all  except  two,  we  think, 
support    the    rule    adopted    by    the  court. 
Brown  v.  Foster,  51  Pa.  St.  165,  is  a  casft 
quite  similar  to  this.    Repairs  to  a  boat  by 
putting  in  machinery  were  to  be  completed 
by  October  1st.    The  work  was  not  done  un- 
til December  15th.    The  trial  court  gave,  as 
the  rule  of   damage,  "that  the  measure  in 
such  a  case  is  the  ordinary  hire  of  such  a 
boat  for  the  time  in  question,  for  the  time 
plaintiff  was  in  default."    The  complaint  in 
that  case  of  the  rule  as  given  was  by  the  de- 
fendant, w^ho  w-as  seeking  damage,  and  the 
court  said  his  complaint  was  without  reason. 
The  case  cited  is  not  authority  for  the  ap- 
pellants'  position.    In   Mining   Syndicate    v. 
Eraser,  130  U.  S.  Oil,  9  Sup.  Ct.  065,  the  in- 
terest on  the  investment  in  a  mill  that  had 
been  delayed  because  of  defective  machinery 
was  allowed  as  the  measure  of  damage,  but 
only  in  case  the  jury  found  there   was  no 
evidence  of  the  rental  value  of  the  mill.    The 
case  clearly  recognizes  the  rule  as  to  rental 
value  as  a  correct  one.    In  Grifiin  v.  Colver, 
16  N.  Y.  489,  is  the  following  syllabus,  hav- 
ing  full   support  in   the   opinion:    "Upon   a 
breach  of  a  contract  to  deliver  at  a  certain 
day  a  steam-engine  built  and  purchased  for 
the   purpose  of  driving  a  planing-mill  and 
other  definite  machinery,  the  ordinary  rent 
or  hire  which  could  have  been  obtained  for 
the  use  of  the  machinery  whose  operation 
was  suspended  for  want  of  the  steam-engine 
may  be  regarded  as  damages."    In  Nj^e  v. 
Alcohol  Works,  51  Iowa,  129,  50  N.  W.  988, 
this  general  principle  has  support  argumen- 
tatively,  but  another  rule,  because  of  distin- 
guishing  facts,  is   sustained.    The  cases  of 
AUis  V.  McLean,  48  Mich.  428,  12  N.  W.  640, 
and  Taylor  v.  Maguire,  12  Mo.  313,  are  not 
in   harmony    with  this  view,    but   they   are 
clearly  overborne  by  the  weight  of  the  other 
cases  and  the  current  of  authority.    The  lat- 
ter   case    cites,    as    decisive   of  the  point, 
Blanchard  v.  Ely,  21  Wend.  .342.    In  Griflin 
V.  Colver,  supra,  the  Blanchard  Case  is  com- 
mented upon  and  explained,  and,  in  effect, 
it  is  divested  of  the  authority  claimed  for  it 
in  the  Missouri  case. 

But  it  is  said  that  the  boat  in  question  had 
no  established  rental  value.  By  this  it  is 
meant  that  the  boat  had  never  been  rented. 
But  it  will  not  do  to  say  that  because  an  ar- 


140 


dii;ect  and  con.^equential  damages— in  contract. 


tide  has  never  been  rented  it  has  no  rental 
value,  any  more  than  it  would  to  say  that 
because  an  article  had  never  been  sold  it 
has  no  market  value.  We  should  assume 
that  an  article  suitable  and  adji^^ted  for  vise 
at  a  time  and  place  has  both  a  market  and 
rental  value,  at  least  until  the  contrary  ap- 
pears. In  Jemmison  v.  Gray,  29  Iowa,  587, 
this  court  approved  an  instruction  that  "the 
fact,  if  proven,  that  12,213  ties  could  not 
have  been  purchased  for  immediate  delivery 
in  the  market  at  the  places  where  said  ties 
were  to  be  delivered  on  the  1st  day  of  Oc- 
tober, 1SG9,  would  not,  of  itself,  establish 
the  fact  that  there  was  not  a  market  price 
for  such  ties  at  such  time  and  place."  The 
holding  affords  a  strong  presumption  in  favor 
of  a  market  price.  A  like  presumption 
would  prevail  in  favor  of  an  article  having  a 
value  for  hire  at  a  time  and  place  where  such 
-articles  are  in  demand  for  use.  The  testi- 
mony shows  that  boats  varying  in  size  were 
rented  on  the  lake  during  the  season,  both 
by  the  day  and  for  trips.  This  boat  had  per- 
haps twice  the  carrying  capacity  of  any  other 
boat  on  the  lake,  and  in  that  respect  formed 
an  exception;  but  the  rental  value  of  boats 
depended  on  their  size  and  adaptation  for 
use,  and  it  was  competent  for  persons  hav- 
ing knowledge  of  the  business  and  prices 
paid  for  other  boats  to  give  an  opinion  as  to' 
the  rental  value  of  such  a  boat  as  the  one  in 
question.  It  is  contended  that  the  method 
of  ascertaining  the  rental  value  involves  the 
uncertainties  and  facts  on  which  profits  are 
excluded  as  a  ride  of  damage;  but  we  think 
not.  It  is  ti'ue  that  rental  values  are  general- 
ly fixed  fi-om  a  calculation  of  the  profits  to 
be  derived  from  the  use,  but  the  rental  is  a 
fixed,  definite  value,  agreed  to  be  paid,  and 
the  bailee  assumes  the  uncertainties  as  to 
the  profits. 

The  appellants  say:  "For  an  analogous 
case  to  the  one  at  bar,  in  there  being  an  at- 
tempt to  prove  a  rental  value  to  property 
when  the  facts  showed  that  the  property  in 
question  had  no  rental  value,  the  court  is 
referred  to  Coal  Co.  v.  Foster,  59  Pa.  St.  865." 
The  case,  as  we  we  read  it,  is  without  a 
bearing  on  the  question.  The  defendant 
agreed  to  furnish  for  the  coal  company  an 
engine  of  a  particular  size  and  make.  There 
was  no  other  engine  of  the  kind  that  the 
company  could  use.  There  was  a  delay  in 
the  delivery,  and  the  company  v/as  compell- 
ed to  transport  its  coal  by  horse-power,  as  it 
had  before  done.  The  trial  court  gave  the 
rule  "that  the  measure  of  damage  for  tlie  de- 
lay was  the  ordinary  hire  of  a  locomotive 
during  the  period  of  delay."  The  reviewing 
court  gave  the  rule  as  the  difference  betv/een 
the  cost  of  transporting  the  coal  by  horse  and 
by  locomotive  power,  but  placed  its  ruling 
on  the  fact  that  the  parties  knew  there  was 
Vt^r  other  engine  to  be  operated  on  the  track 
of  the  company,  and  could  not  have  had  such 


damage  in  view  in  making  the  contract.  It 
will  be  seen  that  the  cases  are  difCerent.  If 
in  the  case  at  bar  the  defendant's  boat  had 
been  operated  at  an  additional  cost  by  do- 
ing the  same  amount  of  work  during  the 
delay,  it  would  be  reasonable  to  say  the  dam- 
age to  him  was  the  difference  in  the  cost. 
But  his  is  an  entire  loss  of  use,  and  the  value 
of  such  use  is  the  damage,  where  it  is  proxi- 
mate, and  not  speculative  or  uncertain. 

2.  A  part  of  the  counter-claim  is  for  loss 
of  time  by  men  kept  in  readiness  by  defend- 
ant to  do  the  part  of  the  work  belonging  to 
him  in  adjusting  the  boilers  and  machinery, 
as  provided  by  the  contract.  On  this  branch 
of  the  case  the  court  gave  the  following  in- 
struction: "(5)  If  you  find  from  the  evi- 
dence, and  under  the  third  and  fourth  in- 
structions, that  there  was  a  contract,  as  set 
out,  between  plaintiffs  and  defendant,  and 
that  plaintiffs  were  in  default  in  carrying 
out  said  contract;  and  if  you  find  that,  by 
reason  of  such  default,  defendant  was  dam- 
aged; and  if  you  further  find  that  defendant 
was  in  readiness  to  carry  out  his  part  of 
said  contract  at  the  time  specified  therein; 
and  that  at  the  time  he  was  in  readiness  to 
run  and  operate  his  boat;  and  that  the  boat 
was  necessarily  idle  during  the  period  of 
plaintilf s'  default,  by  reason  of  such  default, 
—then  the  defendant  would  be  entitled  to 
recover  the  ordinary  and  reasonable  rental 
value  of  said  boat  during  the  time  of  said 
default,  and  such  reasonable  and  necessary 
amount  (if  there  be  any  such  amount)  as  he 
may  have  been  required  to  pay  to  any  men 
that  he  may  have  employed  during  said  en- 
forced idleness  for  the  purpose  of  running 
said  boat,  if  he  had  any  such  men  in  his 
employ  who  remained  in  his  employ  and  idle 
by  reason  of  such  default;  and  if  you  find 
that  the  defendant  had  placed  himself  in 
readiness  to  work  upon  said  boat  himself 
at  the  time  specified  in  the  contract  for  the 
furnishing  of  said  machinery,  and  that  he 
necessarily  remained  idle  during  the  time  of 
such  default,  if  any,  of  the  plaintiffs,  and 
used  ordinary  diligence  to  find  other  employ- 
ment for  that  time,  you  will  then  further 
find  the  fair  and  reasonable  value  of  his 
services  during  the  period  of  such  default 
as  part  of  the  damage,  if  any,  which  defend- 
ant sustained."  Complaint  is  made  of  the 
instruction,  as  stating  an  erroneous  rule  of 
damages,  but  we  discover  no  error.  If,  be- 
cause of  the  breach,  the  defendant  lost  his 
or  the  time  of  his  emploj-es,  for  sucli  time 
and  expense  he  should  be  reimbursed.  The 
rule  is  recognized  in  Mining  Syndicate  v. 
Fraser,  supra.  The  instruction  fairly  pro- 
tects the  rights  of  the  plaintiffs.  A  number 
of  other  questions  are  argued,  all  of  which 
we  have  examined,  and  find  no  prejudicial 
error.  It  would  serve  no  good  purpose  to 
extend  the  opinion  to  present,  them.  The 
judgment  is  atfirmed. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT.  141 


MASTERTOX    ET   AL.    v.    MAYOR,    ETC., 
OF  CITY  OF   BROOKLYN. 

(7  Hill,  61.) 

Supreme  Court  of  New  York.     Jan.  Term, 
1845. 

This  was  an  action  of  covenant  commenc- 
ed in  1840.  and  tried  at  tiie  New  Yorli  cir- 
cuit in  June,  1843,  before  Kent,  C.  J.     The 
case    was    this:     January  20,   1S3G,  a  cove- 
nant was  entered  into  between  the  defendants 
and  the  plaiutiifs,  by  which  the  latter  agreed 
at    their   own    risk,    costs   and    charges,    to 
furnish,   cut,   fit,   and  deliver   (properly  and 
sufficiently  prepared  for  setting),  at  the  site 
of  the  city  hall  in  the  city  of  Brooklyn,  all 
the  marble  that  might  be  required  for  build- 
ing the  said  city  hall,  according  to  certain 
plans  and  specifications  then  exhibited  and 
signed    by    the    respective    parties,    and    in 
conformity  with  such  drav»-iugs,   molds  and 
patterns  as  should  from  time  to  time  be  fur- 
nished by  the  superintendent  or  architect  of 
the  said  city  haU;   all  of  the  said  marble  to 
be  of  the  same  quality  as  that  used  for  the 
ornamental  and  best  work  on  the  new  custom- 
house in  the  city  of  New  York,  and  of  the 
best  kind  of  sound  white  marble  from  Kain 
&  Morgan's  quarry,  in  Eastchester,  free  from 
spalts,  cracks,  and  blemishes,  and  wrought 
in    the   best    manner    of   workmanship,   and 
tooled  and  rubbed,  etc.,  as  should  be  ordered 
by     the     superintendent.     It     was     furtber 
agreed  by  the  plaintiffs  that  they  would  pro- 
ceed forthwith  to  the  execution  of  the  work 
with  all  diligence  and  with  a  sufficient  force; 
and  that  they  would  commence  the  delivery 
<)f  the  marble  as  soon  after  the  opening  of 
navigation   in   the   spring   as   might   be   re- 
quired, and  continue  delivering  the  same  in 
such  order  and  at  such  times  and  as  fast  as 
the  superintendent  should  direct.     They  also 
agreed  that  the  marble  thus  delivered  should 
be  subject  to  inspection  and  rejection  by  the 
superintendent,  and  remain  at  the  risk  of  the 
plaintiffs  until  tlie  superintendent  inspected 
and    accepted    it.     And    the   defendants,    in 
consideration     of     the     above     stipulations, 
agreed  to  pay  the  plaintiffs  the  sum  of  $271,- 
600,  at  the  times  and  in  the  manner  follow- 
ing, viz.  the  sum  of  $10,000  when  the  base- 
ment of  the  said  city  hall  was  half  up;  the 
sum  of  $15,000  when  the  whole  of  the  base- 
ment was  up;   the  sum  of  $20,000  when  the 
first  story  was  half  up;    the  sum  of  $20,000 
when  the  whole  of  the  first  story  was  up; 
the  sum  of  .^20,000  when  the  second  story 
was  half  up;    the  sum  of  $20,000  when  the 
whole  of  the  second  story  was  up;   the  sum 
of  $20,000   when   one-half  of  the  cornice  of 
the  superstructure  was  up;    the  sum  of  $20,- 
000  when  the  whole  of  the  cornice  was  up; 
the  sum  of  .^^50.000  wlien  the   columns  and 
capitals  were  up;    the  sum  of  $25,000  when 
the  entablature  was  complete;    the  further 
sum  of  $20,000  when  the  interior  work  was 
done;    and  the  remainder  when  the  building 
was     finished.     The     declaration    alleged    a 


breach  of  this  covenant  in  1837,  and  claimed 
various  items  of  s])ecial  damage. 

March  7,  1836,  the  plaintiffs  entered  into  a 
covenant  with  Kain  »&  Morgan.  This  cove- 
nant, after  referring  to  the  one  entered  into 
with  the  defendants,  and  reciting  a  part  of 
the  same,  provided  that  Kain  &  Morgan 
should  furnish  from  their  quari-y,  in  East- 
Chester,  all  the  marble  required  for  erecting, 
completing  and  finishing  the  city  hall  in  the 
city  of  Brooklyn,  in  such  blocks,  pieces  and 
proportions,  and  in  such  condition  for  work- 
ing, as  is  usual  and  customary;  and  deliver 
the  same  to  the  plaintiffs,  free  of  all  ex- 
pense, on  a  wharf  in  the  city  of  Brooklyn, 
etc.;  the  blocks  to  be  delivered  so  that  there 
should  be  sufficient  time  to  work  and  fit  the 
same  for  the  said  superstructure,,  and  equal 
in  quality  to  that  used  for  the  superstructure 
and  interior  above  the  basement  of  the  new 
custom  house  in  the  city  of  New  York,  etc. 
The  remainder  of  the  covenant  was  as  fol- 
lows: "And  the  said  parties  of  the  first 
part  (the  plaintiffs),  in  consideration,  etc., 
do  hereby  covenant  and  agree  to  pay  the 
said  parties  of  the  second  part  (Kain  >&  Mor- 
gan) in  the  aggregate  the  sum  of  $112,395, 
which  amount  shall  be  paid  in  different 
sums,  from  time  to  time,  out  of  the  sum  of 
$271,600  to  be  paid  by  the  said  mayor,  etc. 
(the  defendants),  to  the  said  parties  of  the- 
first  part,  as  the  same  from  time  to  time 
may  be  paid  to  them,  etc.;  that  is  to  sayi 
The  said  parties  of  the  first  part  shall  and 
will  make  payment  to  the  said  parties  of  the- 
second  part  at  the  same  times  that  they, 
the  said  parties  of  the  first  part,  receive 
their  payments  from  the  mayor,  etc.  (the  de- 
fendants). And  the  several  payments  thus 
to  be  made  to  the  said  parties  of  the  second, 
part  shall  bear  the  same  proportion,  respec- 
tively, to  the  whole  amount  they  are  to  re- 
ceive from  the  said  parties  of  the  first  pai't  as 
the  corresponding  payment  to  the  said  parties 
of  the  fii-st  part  by  the  mayor*,  etc.,  bear  to 
the  ^^•hole  amount  they  are  to  receive  under 
their  contract  from  the  said  mayor,  etc. 
And  it  is  expressly  understood  and  mutually 
covenanted  and  agreed  that  in  no  event  shall 
the  parties  of  the  second  part  look  to  the 
said  parties  of  the  first  part,  or  hold  them 
responsible  for  any  payments,  until  the  said 
parties  of  the  first  part  are  first  placed  in 
sufficient  funds  by  the  mayor,  etc.  (the  de- 
fendants), to  enable  them  to  make  such  pay- 
ment according  to  the  herein  last  before- 
mentioned  provisions,"  etc. 

The  covenant  with  Kain  &  Morgan  was 
read  in  evidence  by  the  plaintiffs,  subject  to 
the  right  of  the  defendants  to  raise  such  ob- 
jections to  its  admissibility,  during  the  prog- 
ress of  the  cause,  as  they  might  think  prop- 
er. The  plaintiffs  also  proved  that  they 
commenced  the  delivery  of  the  marble  in 
pursuance  of  the  covenant  between  them  and 
the  defendants,  and  continued  so  to  do  until 
July.  1837,  when  the  defendants  suspended 
operations    upon    the   building    for   want    of 


142 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


funds,  and  refused  to  receive  any  more  ma- 
terials of  the  plaintiffs,  though  the  latter 
■were  ready  and  oft'ered  to  perform.  The 
entire  quantity  of  marble  necessary  to  ful- 
fill the  contract  on  the  part  of  the  plaintiffs, 
according  to  the  estimates  made  at  the  trial, 
vvas  88,810  feet.  At  the  time  the  work  was 
suspended,  the  plaintiffs  had  delivered  14,- 
779  feet,  for  which  they  were  paid  the  con- 
tract price.  The  plaintiffs  then  had  on 
hand,  at  Kain  &  Morgan's  quarry,  about 
0,308  feet,  which  was  suitably  fitted  and  pre- 
pared for  delivery.  A  witness  swore  that 
this  was  not  of  much  value  for  other  build- 
ings, and  would  not  probably  bring  over 
two  shillings  per  foot.  Other  witnesses 
sv/ore  that,  had  the  work  progressed  with 
ordinary  diligence,  it  would  have  taken 
about  five  years  to  complete  the  contract  on 
the  part  of  the  plaintiffs.  Considerable  testi- 
mony was  given  tending  to  show  the  cost 
of  marble  in  the  quarry,  and  the  expense  of 
raising,  dressing,  and  transporting  it  to  the 
place  of  delivery.  And  the  plaintiffs  offered 
to  show  "what  would  be  the  difference  be- 
tween the  cost  to  them  of  the  marble  in  the 
contract,  and  the  price  that  was  to  be  paid 
for  it  by  the  contract,"  which  evidence  was 
objected  to,  but  the  circuit  judge  admitted 
it,  and  the  defendants  excepted.  The  wit- 
nesses answered  that  in  1836  the  difference 
would  be  about  20  per  cent.;  in  1837,  from 
2.5  to  30  per  cent;  in  1838,  about  25  per  cent.; 
in  1839,  from  25  to  30  per  cent.;  and  in 
1840,  from  30  to  40  per  cent.  The  witnesses 
also  testified  that  the  ordinary  profit  calcu- 
lated upon  by  master  stone  cutters  was  from 
10  to  20  per  cent.,  and  that  15  per  cent,  was 
a  fair  living  profit.  All  this  testimony  was 
objected  to,  but  the  circuit  judge  admitted 
it,  and  the  defendants  again  excepted. 

When  the  plaintiffs  rested,  the  tlefendants 
moved  that  all  the  testimony  in  relation  to 
the  contract  of  Kain  &  Morgan  with  the 
plaintiffs,  and  the  contract  itself,  be  exclud- 
ed from  the  consideration  of  the  jury  as  ir- 
relevant, but  the  circuit  judge  overruled  the 
motion,  and  the  defendants  excepted. 

The  circuit  judge  charged  the  jury,  among 
other  things,  that  they  were  to  allow  the 
plaintiffs  as  much  as  the  performance  of  the 
contract  would  have  benefited  them;  that 
the  plaintiffs  were  entitled  to  recover  for  the 
unfinished  marble  not  accepted,  subject  to 
a  deduction  of  what  should  be  deemed  its 
fair  market  value;  that  the  jury  should  con- 
fine the  damages  to  the  loss  of  the  plaintiff's; 
but  that  the  benefit  or  profits  which  they 
would  have  received  from  the  actual  per- 
formance constituted  such  loss.  The  cir- 
cuit judge  also  charged  as  follows:  "The 
defendants  ought  to  be  allowed  what  the 
jury  should  think  just  as  to  interest  on  the 
outlays  of  the  plaintiffs;  also  Avhat  the  jury 
might  think  just  for  the  risk  of  transporta- 
tion, and  the  reasonable  value  of  the  marble 
unaccepted  and  unquarried.  As  to  damages 
on  the  rough  marble  to  be  delivered  by  Kain 


&  Moi'gan,  it  appears  by  the  contract  with 
the  defendants  that  the  plaintiff's  were  ob- 
liged to  procure  it  from  this  quarry.  The 
plaintiffs'  contract  with  Kain  &  Morgan,  if 
made  in  good  faith,  was  entered  into  as  a 
reasonable  part  of  the  performance  by  the 
plaintiffs  of  their  own  contract;  and  if  the 
defendants,  by  stopping  the  work,  obliged 
the  plaintiff's  to  break  their  contract  with 
Kain  &  Morgan,  then  the  damages  on  the 
latter  ought  to  be  allowed  to  the  plaintiffs, 
who  ■  would  be  responsible  to  Kain  &  Mor- 
gan for  the  same.  The  jury,  in  respect  to 
this  contract  are  to  give  the  difference  be- 
tween the  contract  price  and  what  it  would 
cost  Kain  &  Morgan  to  deliver  the  article, 
deducting  the  value  of  it  to  them,  and  mak- 
ing all  proper  allowances  as  in  the  case  of 
the  principal  contract.  In  fixing  the  dam- 
ages to  be  allowed  the  plaintiff's,  the  jury  are 
to  take  things  as  they  were  at  the  time  the 
work  was  suspended,  and  not  allow  for  any 
increased  benefits  thej'  would  have  received 
from  the  subsequent  fall  of  wages  or  subse- 
quent circumstances."  etc. 

The  defendants  excepted  to  the  charge, 
and  requested  the  circuit  judge  to  instruct 
the  jury,  among  other  things,  that  no  dam- 
ages should  be  allowed  on  account  of  any  sup- 
posed profits  which  the  plaintiffs  might  have 
made  out  of  the  unfinished  work;  and  that 
the  damages  allowed  should  be  confined  to 
the  actual  loss  which  the  plaintiffs  had  sus- 
tained. The  judge  refused  to  chai'ge  fur- 
ther, and  the  defendants  excepted.  The  jury 
found  a  verdict  in  favor  of  the  plaintiffs  for 
$72,999,  and  the  defendants  now  moved  for 
a  new  trial  on  a  bill  of  exceptions. 

D.  Lord  and  C.  O' Conor,  for  plaintiffs.  B. 
F.  Butler  and  G.  Wood,  for  defendants. 

NELSON,  C.  J.  The  damages  for  the 
marble  on  hand,  ready  to  be  delivered,  were 
not  a  matter  in  dispute  on  the  argument. 
The  true  measure  of  allowance  in  respect  to 
that  item  was  conceded  to  be  the  diff'erence 
between  the  contract  price  and  the  market 
value  of  the  article  at  the  place  of  delivery. 
This  loss  the  plaintiffs  had  actually  sustain- 
ed, regard  being  had  to  their  rights  as  ac- 
quired under  contract. 

The  contest  arises  out  of  the  claim  for  dam- 
ages in  respect  to  the  remainder  of  the  mar- 
ble which  the  plaintiff's  had  agreed  to  furnish, 
but  which  they  were  j)  re  vented  from  furnish- 
ing by  the  suspension  of  the  work  in  July, 
1837.  This  portion  was  not  ready  to  be  de- 
livered at  the  time  the  defendants  broke  up 
the  conti'act,  but  the  plaintiffs  were  then 
willing  and  offered  to  perform  in  all  things 
on  their  part  and  the  case  assumes  that  they 
were  possessed  of  sufH.cient  means  and  abil- 
ity to  have  done  so. 

The  plaintiffs  insist  that  the  gains  they 
would  have  realized,  over  and  above  all  ex- 
penses, in  case  they  had  been  allowed  to  per- 
form  the   contract,   enter   into  and  properly 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


143 


constitute  a  part  of  the  loss  and  damage  oc- 
casioned by  tlie  breacli;  and  they  were  ac- 
cordingly permitted  in  the  course  of  the  trial 
to  give  evidence  tending  to  show  what 
amount  of  gains  they  would  have  realized  if 
the  contract  had  been  carried  into  execu- 
tion. 

On  the  other  hand,  the  defendants  say  that 
this  claim  exceeds  the  measure  of  damages 
allowed  by  the  common  law  for  the  breach 
of  an  executory  contract.  They  insist  that  it 
is  smiply  a  claim  for  the  prohts  anticipated 
from  a  supposed  good  bargain,  and  that  these 
are  too  uncertain,  speculative,  and  remote  to 
form  the  basis  of  a  recovery. 

It  is  not  to  be  denied  that  Uiere  are  profits 
or  gains  derivable  from  a  contract  which  are 
uniformly    rejected    as    too    contingent   and 
speculative  in  their  nature,  and  too  dependent 
upon    the   fluctuation    of    markets   and    the 
chances  of  business,  to  enter  into  a  safe  or 
reasonable  estimate  of  damages.    Thus  any 
supposed     successful     operation     the     party 
might  have  made,  if  he  had  not  been  prevent- 
ed from  realizing  the  proceeds  of  the  con- 
tract at  the  time  stipulated,  is  a  considera- 
tion not  to  be  taken  into  the  estimate.    Be- 
sides the  uncertain  and  contingent  issue  of 
such  an  operation  in  itself  considered,  it  has 
no    legal   or  necessary   connection   with  the 
stipulations  between  the  parties,  and  cannot, 
therefore,  be  presumed  to  have  entered  into 
their  consideration  at  the  time  of  contracting. 
It  has  accordingly  been  held  that  the  loss  of 
any  speculation  or  enterprise  in  which  a  par- 
ty may  have  embarked,  relying  on  the  pro- 
ceeds to  be  derived   from  the  fulfillment  of 
an  existing  contract,  constitutes  no  part  of 
the    damages    to    be    recovered    in    case    of 
breach.    So  a  good  bargain  made  by  a  ven- 
dor, in  anticipation  of  the  price  of  the  article 
sold,  or  an  advantageous  contract  of  resale 
made  by  a  vendee,  confiding  in  the  vendor's 
promise  to  deliver  the  article,  are  considera- 
tions always  excluded  as  too  remote  and  con- 
tingent  to  affect  the  question  of   damages. 
Clare  v.  Maynard,  6  Adol.  &,  E.  519,  and  Cox 
V.  Walker,  in  the  note  to  that  case;   Walker 
V.  Moore,  10  Barn.  &  C.  41G;    Cary  v.  Gru- 
man,  4  Hill,  627,  62S;    Chit.  Cont.  45S,  870. 

The  civil  law  is  in  accordance  with  this 
rule.  "In  general,"  says  Pothier,  "the  par- 
ties are  deemed  to  have  contemplated  only 
the  damages  and  interest  which  the  creditor 
might  suffer  from  the  nonperformance  of  the 
obligation,  in  respect  to  the  particular  thing 
which  is  the  object  of  it,  and  not  such  as  may 
have  been  incidentally  occasioned  thereby  in 
respect  to  his  other  affairs.  The  debtor  is 
therefore  not  answerable  for  these,  but  only 
for  such  as  are  suffered  with  respect  to  the 
thing  which  is  the  object  of  the  obligation, 
"Damni  et  interesse  ipsam  rem  non  habitam." 
1  Evans.  Poth.  91.  And  see  Dom.  bk.  3,  tit. 
5,  §  2,  arts.  3-6. 

When  the  books  and  cases  "speak  of  the 
profits  anticipated  from  a  good  bargain  as 
matters  too  remote  and  uncertain  to  be  taken 


into  the  account  in  ascertaining  the  true 
measure  of  damages,  they  usually  have  refer- 
ence to  dependent  and  collateral  engage- 
ments entered  into  on  the  faith  and  in  ex- 
pectation of  the  performiinco  of  the  principal 
conti-act.  The  performance  or  non-perform- 
ance of  the  latter  may  and  often  does  exert  a 
material  influence  upon  the  collateral  enter- 
prises of  the  party;  and  the  same  may  be 
said  as  to  his  general  affairs  and  business 
transactions.  But  the  influence  is  altogether 
too  remote  and  subtile  to  be  reached  by  legal 
proof  or  judicial  investigation.  And  besides, 
the  consequences,  when  injurious,  are  as  oft- 
en, perhaps,  attributable  to  the  indiscretion 
and  fault  of  the  party  himself  as  to  the  con- 
duct of  the  delinquent  contractor.  His  condi- 
tion, in  respect  to  the  measure  of  damages, 
ought  not  to  be  worse  for  having  failed  in 
his  engagement  to  a  person  whose  affairs 
were  embarrassed  than  if  it  had  been  made 
with  one  in  prosperous  or  affluent  circum- 
stances.    Dom.  bk.  3,  tit.  5,  §  2,  art.  4. 

But  profits  or  advantages  which  are  the  di- 
rect and  immediate  fruits  of  the  conti-act  en- 
tered into  between  the  parties  stand  upon  a 
different  footing.  These  are  part  and  parcel 
of  the  contract  itself,  entering  into  and  con- 
stituting a  portion  of  its  very  elements;  some- 
thing stipulated  for,  the  right  to  the  enjoy- 
ment of  which  is  just  as  clear  and  plain  as  to 
the  fulfillment  of  any  other  stipulation.  They 
are  presumed  to  have  been  taken  into  consid- 
eration and  deliberated  upon  before  the  con- 
tract was  made  and  formed;  perhaps  the 
only  inducement  to  the  arrangement.  The 
parties  may,  indeed,  have  entertained  differ- 
ent opinions  concerning  the  advantages  of  the 
bargain,  each  supposing  and  believing  that  he 
had  the  best  of  it;  but  this  is  mere  matter 
of  judgment  going  to  the  formation  of  the 
contract,  for  which  each  has  shown  himself 
willing  to  take  the  responsibility,  and  must, 
therefore,  abide  the  hazard. 

Such  being  the  relative  position  of  the  con- 
tracting parties,  it  is  ditticult  to  comprehend 
why,  in  case  one  party  has  deprived  the  oth- 
er of  the  gains  or  profits  of  the  contract  by 
refusing  to  perform  it,  this  loss  should  not 
constitute  a  proper  item  in  estimating  the 
damages.  To  separate  it  from  the  general 
loss  would  seem  to  be  doing  violence  to  the 
intention  and  understanding  of  the  parties, 
and  severing  the  contract  itself. 

The  civil  law  writers  plainly  include  the 
loss  of  profits,  in  cases  like  the  present,  with- 
in the  damages  to  which  the  complaining 
party  is  entitled.  They  hold  that  he  is  to  be 
indemnified  for  "the  loss  which  the  non-per- 
formance of  the  obligation  has  occasioned 
him,  and  for  the  gain  of  which  it  has  depriv- 
ed him."  1  Evans,  Poth.  90;  Dom.  bk.  3,  tit. 
5,  §  2,  arts.  6,  12.  And  upon  looking  into 
the  common-law  authorities  bearing  upon  the 
question,  especially  the  later  ones,  they  will 
be  found  to  come  nearly,  if  not  quite,  up  to 
the  rule  of  the  civil  law. 
In  Boorman  v.  Nash,  9  Barn.  &.  C.  145,  it 


144 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


appeared  that  tlie  defendant  contracted  in 
November  for  a  quantity  of  oil,  one-half  to 
be  delivered  to  him  in  Pebioiary  following, 
and  the  rest  in  March;  but  he  refused  to  re- 
ceive any  part  of  it.  And  the  com't  held  that 
the  plaintiff  was  entitled  to  the  difference 
between  the  contract  price  and  that  which 
might  have  been  obtained  in  market  on  the 
days  -svhen  the  contract  ought  to  have  been 
completed.  See  M'Lean  v.  Dunn,  4  Bing.  722. 
The  case  of  Leigh  v.  Paterson,  S  Taunt.  540, 
was  one  in  which  the  vendor  was  sued  for 
not  delivering  goods  December  31st,  accord- 
ing to  his  contract.  It  appeared  that  in  the 
month  of  October  preceding  he  had  apprised 
the  vendee  that  the  goods  would  not  be  deliv- 
ered, at  which  time  the  market  value  was 
considerably  less  than  December  31st.  The 
court  held  that  the  vendee  had  a  right  to  re- 
gard the  contract  as  subsisting  until  Decem- 
ber 31st,  if  he  chose  and  recover  the  differ- 
ence between  the  conti-act  price,  and  the  mar- 
ket value  on  that  day.  See,  also,  Gainsford 
V.  Carroll,  2  Barn.  &  C.  024. 

The  above  are  cases,  it  will  be  seen,  in 
wliich  the  profits  of  a  good  bargain  were  re- 
garded as  a  legitimate  item  of  damages,  and 
constituted  almost  the  only  ground  of  recov- 
ery. And  it  appears  to  me  that  we  have  only 
to  apply  the  principle  of  these  cases  to  the 
one  in  hand,  in  order  to  determine  the  meas- 
ure of  damages  which  must  govern  it.  The 
contract  here  is  for  the  delivery  of  marble, 
wrought  in  a  paticular  manner,  so  as  to  be 
fitted  for  use  in  the  erection  of  a  certain  build- 
ing. The  plaintiffs'  claim  is  substantially 
one  for  not  accepting  goods  bargained  and 
sold;  as  much  so  as  if  the  subject-matter  of 
the  contract  had  been  bricks,  rough  stone,  or 
any  other  article  of  commerce  used  in  the 
process  of  building.  The  only  difficulty  or 
embaiTassment  in  applying  the  general  rule 
grows  out  of  the  fact  that  the  article  in  ques- 
tion does  not  appear  to  have  any  well-ascer- 
tained market  value.  But  this  cannot  change 
the  principles  which  must  goveim,  but  only 
the  mode  of  ascertaining  the  actual  value  of 
the  article,  or  rather  the  cost  to  the  party  pro- 
ducing it.  Where  the  article  has  no  market 
value,  an  investigation  into  the  constituent 
elements  of  the  cost  to  the  party  who  has 
contracted  to  furnish  it  becomes  necessary; 
and  that,  compared  with  the  contract  price, 
will  afford  the  measure  of  damages.  The 
jury  will  be  able  to  settle  this  upon  evidence 
of  the  outlaj's,  trouble,  risk,  etc.,  which  enter 
into  an.d  make  up  the  cost  of  the  article  in 
the  condition  required  by  the  contract  at  the 
place  of  delivei-y.  If  the  cost  equals  or  ex- 
ceeds the  contract  price,  the  recovery  will  of 
course  be  nominal,  but,  if  the  contract  price 
exceeds  the  cost,  the  difference  will  constitute 
the  measure  of  damages. 

It  has  been  argued  that  inasmuch  as  the 
furnishing  of  the  marble  would  have  run 
through  a  period  of  five  years,— of  which 
about  one  year  and  a  half  only  had  expired  at 
the    time    of    the    suspension,— the    benefits 


which  the  party  might  have  realized  from  the 
execution  of  the  contract  must  necessarily 
be  speculative  and  conjectural;  the  court  and 
jury  having  no  certain  data  upon  which  to 
make  the  estimate.  If  it  were  necessai-y  to 
make  the  estimate  upon  any  such  basis,  the 
argument  would  be  decisive  of  the  present 
claim.  But,  in  my  judgment,  no  such  neces- 
sity exists.  Where  the  contract,  as  in  this 
case.  Is  oroken  before  the  arrival  of  the  time 
for  full  performance,  and  the  opposite  party 
elects  to  consider  it  in  that  light,  the  market 
price  on  the  day  of  the  breach  is  to  govena 
in  the  assessment  of  damages.  In  other 
words,  the  damages  are  to  be  settled  and  as- 
certained according  to  the  existing  state  of 
the  market  at  the  time  the  cause  of  action 
arose,  and  not  at  tlie  time  fixed  for  full  per- 
formance. The  basis  upon  which  to  esti- 
mate the  damages,  therefore,  is  just  as  fixed 
and  easily  ascertained  in  cases  like  the  pres- 
ent, as  in  actions  predicated  upon  a  failure  to 
perform  at  the  day. 

It  will  be  seen  that  we  have  laid  altogether 
out  of  view  the  subcontract  of  Kain  &  Mor- 
gan, and  all  others  that  may  have  been  en- 
tered into  by  the  plaintiffs  as  preparatory 
and  subsidiary  to  the  fulfillment  of  the  prin- 
cipal one  with  the  defendants.  Indeed,  I  am  un- 
able to  comprehend  how  these  can  be  taken  in- 
to the  account,  or  become  the  subject-matter  of 
consideration  at  all,  in  settling  the  amount  of 
damages  to  be  recovered  for  a  breach  of  the 
principal  contract.  The  defendants  had  no 
control  over  or  participation  in  the  making 
of  the  subcontracts,  and  are  certainly  not  to 
be  compelled  to  assume  them  if  improvident- 
ly  entered  into.  On  the  other  hand,  if  they 
were  made  so  as  to  secure  great  advantages 
to  the  plaintiffs,  surely  the  defendants  are 
not  entitled  to  the  gains  which  might  be  re- 
alized from  them.  In  any  aspect,  therefore, 
these  subcontracts  present  a  most  unfit  as 
well  as  unsatisfactory  basis  upon  which  to 
estimate  the  real  damages  and  loss  occasion- 
ed by  the  default  of  the  defendants.  The 
idea  of  assuming  that  the  plaintiffs  were  nec- 
essarily compelled  to  break  all  their  subcon- 
tracts as  a  consequence  of  the  breach  of  the 
principal  one,  and  that  the  damages  to  which 
they  may  be  thus  subjected  ought  to  enter 
into  the  estimate  of  the  amount  recoverable 
against  the  defendants,  is  too  hypothetical 
and  remote  to  lead  to  any  safe  or  equitable 
result.  And  yet  the  fact  that  these  subcon- 
tracts must  ordinarily  be  entered  into  prepar- 
atory to  the  fulfillment  of  the  principal  one, 
shows  the  injustice  of  restricting  the  dam- 
ages, in  cases  like  the  present,  to  compensa- 
tion for  the  work  actually  done,  and  the  item 
of  materials  on  hand.  We  should  thus  throw 
the  whole  loss  and  damage  that  would  or 
might  arise  out  of  contracts  for  further  mate- 
rials, etc.,  entirely  upon  the  party  not  in 
fault. 

If  there  was  a  market  value  of  the  article 
in  this  case,  the  question  would  be  a  simple 
one.    As  there  is  none,  however,  the  parties 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT.  145 


will  be  obliged  to  go  into  an  inquiry  as  to 
the  actual  cost  of  furnishing  the  article  at 
the  place  of  delivery;  and  the  court  and  jui-y 
should  see  that  in  estimating  this  amount  it 
be  made  upon  a  substantial  basis,  and  not 
be  left  to  rest  upon  the  loose  and  specula- 
tive opinions  of  witnesses.  The  constituent 
elements  of  the  cost  should  be  ascertained 
from  sound  and  reliable  sources;  from  prac- 
tical men,  having  exi)crienee  in  the  particu- 
lar department  of  labor  to  which  the  con- 
tract relates.  It  is  a  very  easy  matter  to 
figure  out  large  profits  upon  paper;  but  it 
will  be  found  that  these,  in  a  great  majority 
of  the  cases,  become  seriously  reduced  when 
Bubjected  to  the  contingencies  and  hazards  in- 
cident to  actual  performance.  A  jury  should 
scrutinize  with  care  and  watchfulness  any  spec- 
ulative or  conjectural  account  of  the  cost  of 
furnishing  the  orticle  that  woiild  result  in  a 
very  unequal  bargain  between  the  parties,  by 
which  the  gains  and  benefits,  or,  in  other 
words,  the  measure  of  damages  against  the 
defendants,  are  unreasonably  enhanced. 
They  should  not  overlook  the  risks  and  con- 
tingencies which  are  almost  insepai-able  from 
the  execution  of  contracts  like  the  one  in 
question,  and  which  increase  the  expense  in- 
dependently of  the  outlays  in  labor  and  cap- 
ital. 

These  views,  it  will  be  seen,  when  con- 
trasted with  the  law  as  expounded  and  ap- 
plied by  the  circuit  judge,  necessai'ily  lead  to 
the  granting  of  a  new  trial. 

BEAIIDSLEY,  J,  The  circuit  judge  clearly 
erred  in  that  part  of  his  charge  to  the  jury 
which  related  to  the  contract  of  the  plaintiffs 
with  Kain  &  Morgan.  No  damages  are  al- 
lowable on  account  of  this  contract,  nor  am  I 
able  to  see  how  it  can  be  regarded  as  rele- 
vant evidence  upon  any  disputed  point  con- 
nected with  the  amount  for  which  the  de- 
fendants are  liable. 

The  main  question  in  the  case  arises  out  of 
the  claim  of  the  plaintiffs  in  respect  to  that 
portion  of  their  contract  with  the  defendants 
Avhich  remained  wholly  unexecuted  in  July, 
1837.  I  think  the  plaintiffs  are  entitled  to 
recover  the  amount  they  would  have  realized 
as  profits  had  they  been  allowed  fully  to 
execute  their  contract.  The  defendants  are 
not  to  gain  by  their  wrongful  act,  nor  is  that 
to  deprive  the  plaintiffs  of  the  advantages 
they  had  secured  by  the  contract,  and  which 
would  have  resulted  to  them  from  its  per- 
formance. The  jury  must,  therefore,  ascer- 
tain what  it  would  probably  have  cost  them 
to  complete  the  contract,  over  and  above  the 
materials  on  hand,  including  the  value  of  the 
marble  required,  the  labor  of  quarrying  and 
preparing  it  for  use,  the  expense  of  transpor- 
tation, superintendence,  and  insurance  against 
all  hazards,  together  with  every  other  ex- 
pense incident  to  the  fulfillment  of  the  under- 
taking. The  aggregate  of  these  expenditures 
is  to  be  deducted  from  the  amount  which 
would  be  payable  for  the  performance  of  this 
LAW  DAM.2d  Ed.— 10 


part  of  the  contract,  according  to  the  prices 
therein  stipulated,  and  the  balance  will  be 
the  damages  which  the  jury  should  allow  for 
the  item  under  consideration. 

Remote  and  contingent  damages,  depending 
on  the  result  of  successive  schemes  or  in- 
vestments, are  never  allowed  for  the  violation 
of  any  contract.  But  profits  to  be  earned 
and  made  by  the  faithful  execution  of  a  fair 
contract  are  not  of  this  description.  A  right 
to  damages  equivalent  to  such  profits  results 
directly  and  immediately  from  the  act  of  the 
party  who  prevents  the  contract  from  being 
performed. 

Where  a  vendor  has  agreed  to  sell  and  de- 
liver personal  property  at  a  particular  day, 
and  fails  to  perform  his  contract,  the  vendee 
maj'  recover  in  damages  the  difference  be- 
tween the  contract  price  and  the  market  value 
of  the  property  at  the  time  when  it  should 
have  been  delivered.  Chit.  Cont.  (5th  Am. 
Ed.)  445;  Dey  v.  Dox,  9  Wend.  129;  Gains- 
ford  V.  Carroll,  2  Barn.  &  C.  624;  Shepherd 
V.  Hampton,  3  Wheat.  200;  Quarles  v.  George, 
23  Pick.  400;  Shaw  v.  Nudd,  8  Pick.  9;  2 
Phil.  Ev.  104.  So,  if  a  person  who  has 
agreed  to  purchase  goods  at  a  certain  price 
refuses  to  receive  them,  he  must  pay  the  dif- 
fel-ence  between  their  market  value  and  the 
enhanced  price  which  he  contracted  to  pay. 
2  Starkie,  Ev.  (7th  Am.  Ed.)  1201;  Boorman 
V.  Nash,  9  Barn.  &  C.  145. 

These  principles  are  strictly  applicable  to 
the  present  case.  In  reason  and  justice  there 
can  be  no  difference  between  the  damages 
which  should  be  recovered  for  the  breach  of 
an  ordinary  agreement  to  buj-  or  sell  goods 
and  one  to  procure  building  materials,  fit 
them  for  use,  and  deliver  them  in  a  finished 
state,  at  a  stipulated  price.  In  neither  case 
should  the  wrongdoer  be  allowed  to  profit  by 
his  wrongful  act.  The  party  who  is  ready 
to  perform  is  entitled  to  a  full  indemnity  for 
the  loss  of  his  contract.  He  should  not  be 
made  to  suffer  by  the  delinqueucj'  of  the 
other  party,  but  ought  to  recover  precisely 
what  he  would  have  made  by  performance. 
This  is  as  sound  in  morals  as  it  is  in  law. 
Shannon  v.  Comstock,  21  Wend.  401;  Miller 
V.  Mariner's  Church,  7  Greenl.  51;  Shaw  v. 
Nudd,  8  Pick.  13;  Swift  v.  Barnes,  16  Pick. 
190;    Royaltou  v.  Turnpike  Co.,  14  Vt.  311. 

The  plaintiffs  were  not  bound  to  wait  till 
the  period  had  elapsed  for  the  complete  per- 
formance of  the  agreement,  nor  to  make  suc- 
cessive offers  of  performance,  in  order  to  re- 
cover all  their  damages.  They  might  re^ 
gard  the  contract  as  broken  up,  so  far  as  to 
absolve  them  from  making  further  eft"orts  to 
perform  and  give  them  a  right  to  recover  full 
damages  as  for  a  total  breach.  I  am  not  pre- 
pared to  say  that  the  plaintiffs  might  not 
have  brought  successive  suits  on  this  cove- 
nant, had  they  from  time  to  time  made  :>*- 
peated  offers  to  perform  on  their  part,  which 
were  refused  by  the  defendants,  but  this  the 
plaintiffs  were  not  bound  to  do. 

There   can   be    no   serious  difficulty   in  as- 


146 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


sessiug  damages  accordiug  to  the  principles 
wliich  have  been  stated.  The  contract  was 
made  in  1S3G;  and,  according  to  the  testi- 
mony, about  five  years  would  have  been  a 
reasonable  time  for  its  execution.  That  time 
has  gone  bj'.  The  expense  of  executing  the 
contract  must  necessarily  depend  upon  the 
prices  of  labor  and  materials.  If  prices  fluc- 
tuated during  the  period  in  question,  that 
may  be  shown  by  testimony.  In  this  respect 
there  is  no  need  of  resorting  to  conjecture, 
for  all  the  data  necessary  to  form  a  correct 
estimate  of  the  entire  expenses  of  executing 
the  contract  can  now  be  furnished  by  wit- 
nesses. 

If  the  cause  had  been  brought  to  trial  be- 
fore the  time  for  completing  the  contract  ex- 
pired, it  would  have  been  impracticable  to 
make  an  accurate  assessment  of  the  dam- 
ages. This  is  no  reason,  however,  why  the 
injured  party  should  not  have  his  damages, 
although  the  difficulty  in  making  a  just  as- 
sessment in  such  a  case  has  been  deemed  a 
sufficient  ground  for  decreeing  specific  per- 
formance. Adderly  v.  Dixon,  1  Sim.  &  S. 
GO",  and  cases  there  cited.  In  Royalton  v. 
Turnpike  Co.,  II  Vt.  311,  324,  an  action  was 
brought  on  a  contract  which  had  about  twelve 
years  to  run.  And  the  court  held,  in  grant- 
ing a  new  trial,  that  the  rule  of  damages 
"should  have  been  to  give  the  plaintiffs  the 
difference  between  what  they  were  to  pay 
the  defendants,  and  the  probable  expense  of 
performing  the  coiitract;  and  thus  assess  the 
entire  damages  for  the  remaining  twelve 
years."  No  rule  which  will  be  absolutely 
certain  to  do  justice  between  the  parties  can 
be  laid  down  for  such  a  case.  Some  time 
must  be  taken  arbitrarily  at  which  prices  are 
to   be   ascertained  and   estimated;    and   the 


day  of  the  breach  of  the  contract,  or  of  the 
commencement  of  the  suit,  should  perhaps  be 
adopted  under  such  circumstances.  But  we 
need  not,  in  the  present  case,  express  any 
opinion  on  that  point.  No  conjectural  esti- 
mate is  required  to  ascertain  what  would 
have  been  the  expense  of  a  complete  execu- 
tion of  this  contract;  but  the  state  of  the 
market  in  respect  to  prices  is  now  susceptible 
of  explicit  and  intelligible  proof.  And  where 
that  is  so,  it  seems  to  me  unsuitable  to  adopt 
an  arbitrary  period,  especially  as  the  esti- 
mate of  damages  must,  in  any  event,  be 
somewhat  conjectural. 

I  think  the  defendants  are  entitled  to  a  new 
trial,  and  that  the  damages  should  be  assess- 
ed upon  the  principles  stated. 

BRONSON,  J.  As  the  marble  had  no  mar- 
ket value,  the  question  of  profits  involves  an 
inquiry  into  the  cost  of  the  rough  material  in 
the  quarry,  and  the  expense  of  raising,  dress- 
ing, and  transporting  it  to  the  place  of  deliv- 
ery. There  may  have  been  fluctuations  in 
the  prices  of  labor  and  materials  between  the 
day  of  the  breach  and  the  time  when  the  con- 
tract was  to  have  been  fully  performed;  and 
this  makes  the  question  on  which  my  breth- 
ren are  not  agi'eed.  I  concur  in  opinion  with 
the  chief  justice,  that  such  fluctuations  in 
prices  should  not  be  taken  into  the  account 
in  ascertaining  the  amount  of  damages,  but 
that  the  court  and  juiy  should  be  governed 
entirely  by  the  state  of  things  which  existed 
at  the  time  the  contract  was  broken.  This 
is  the  most  plain  and  simple  rule;  it  will 
best  preserve  the  analogies  of  the  law;  and 
will  be  as  likely  as  any  other  to  do  substan- 
tial justice  to  both  parties. 

New  trial  granted. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT.  147 


SHERMAN  CENTER  TOWN  CO.  v.  LEON-  ] 
ARD.  j 

(26  P:ic.  717.  40  Kan.  3.j4.)  i 

Supreme   Court  of   Kansas.    May   9,    1891. 

Error  fr»)m  district  court,  Sherman 
couDty  ;  Louis  K.  Pratt,  Jiul^e. 

Hardv  &  Sterling,  for  plaintiff  in  error. 
Baglei'  '&  AnOrew.s,  for  defendant  in  error. 

.lORNSTON.  J.     Thomas  T*.  Leonard  re- 
covered  a   judRnient  for  .fGOO  against  the 
Sherman   Center  Town  Company  as   dam- 
age for   th(s   breach  of  a  contract.     Leon- 
ard owned  a  hotel  in  Itasca,  and  Sherman 
Center,  which  was    three  miles  away,  was 
a  candidate  for  county-seat   of  Sherman 
county.    The   town  company,  desiring  to 
increase  the   poDulation   and   influence  of 
Sherman  Center'  and   strengthen  its  can- 
didacy, held  out  inducements    to   the  citi- 
zens of  the  surroundinir  towns  to  remove 
their   buildings   and   establish  them.selves 
in  business  in  Sherman   Center,  and   unite 
in  an  effort  to   make  that  town  the  coun- 
ty-seat of   the  county.     Accordingly   they 
■entered  into  an    agreement  w'itli    Leonard 
by   which   Letmard    was  to  join  them  in 
building   up   the  town,   and    remove    his 
hotel    from    Itasca,   in    consideration    of 
v/hich   the  company    was    to    convey    to 
him    certain    lots   in  Sherman  Centtr.  and 
j)rovide  at  its  own  expense   iv.en  am!    Uia- 
chinery   to   remove  the  hotel,  and  place  it 
over  a  cellar  of  ecpial  size,  and    on  a   foun- 
dation  of   a  similar   kind,  as  it  was   then 
resting   upon   in   Itasca.     The  plaintiff  al- 
leged that  the  company  had  failed  and  re- 
fused  to   remove   the  hotel  in  accordance 
with  the  terms  of  the  contract;  that  the 
other  buildings  which  were  then  situated 
in    Itasca   have  been  removed  to  Sherman 
Center,  and    the  town   of   Itasca   has   be- 
come depopulated,   and   the  business    of 
hotel  keeping  of  no    value;  and   that  the 
hotel   now   stands   alone,  with   no   town 
nearer  toit  than  Sherman  Center,  which  is 
nearly  three  miles  distant.    He  further  al- 
leged  that  it   was   a  larfj;e   and    well-fur- 
nished hotel,  and  that  the  cost  of  its  con- 
struction   and    the    furniture    contained 
therein    was   about   f  1,500.     It  is   alleged 
that  the  cost  of  removal  would    be  about 
the  sum  of  $S00,  and  that  he  suffered  dam- 
ages  by   the   refusal    of  the  company    to 
comply  with    the  contract   in    the  sum  of 
$l,-200.     He   therefore  asked  judgment  for 
$2,000.     The  company    l)y  its   answer  de- 
nies the  execution  of  the  contract,  oi*  that 
it  is  authorized   by  its  charter  to  enter  in- 
to the  contract  alleged  to  have  been  made. 
There  are  several  errors  assigned  by  the 
company,  but  only  one   of  them   requires 
attention.     It   appears  that  the  company 
has  c<jnveyed  the  lots  to  Leonard,  as  stip- 
ulated  in   the  contract,  but  the  hotel  has 
not   been     removed,    and,    according     to 
plaintiff's   testimony,  the  non-removal   is 
owing  to   the  refusal  of  the  company  to 
furnish  the   men   and   machinery  for  that 
purpose,  although  frctpient  demands  have 
been   made   upon    them.     In  the  course  of 
the  trial   the   plaintiff   testified    that,   by 
reason  of  the  removal  of  the  people  and 
their   buildings   from    other   towns,  Sher- 
man Center  l)ecame  a  flourishing   place  of 
several  hundred   people,  where    he    could 


have  profitably  carried   on  the  hotel  busi- 
ness, but    that  the  town    of   Itasca   was 
practically  abandoned,  so  that  he  is  with- 
out  Ijusiness,  and    simi)ly  remains   at  the 
hotel   to  protect  the   goods   and  furniture 
therein.     In    order  to    prove  I  he  extent  of 
his    injury,    the    following   question    was 
asked  and    allowed  by  the  court  over   the 
oi)jection    of    the    defendant:     "State,    as 
near  as  you   can,  what  would  have  been 
your  profits,  or  what  your  damages  was, 
in    other  words,  by  reason  of   the  non-lul- 
fillment    of    this    contract,— not     moving 
your  hotel  and  establishing  your  business 
at    Sherman   Center."     Another  question 
which  was   allowed,  over  objection,  was: 
"State  what   the   damage  was  by  reason 
of  them   not   moving  your  hotel  to  Sher- 
man Center,  as  they  agreed  to, in  money." 
He    answered    that    the    loss    or    profits 
would   have   been  igl.jO  a  month,  and  tlmt 
the   total  damage  sustained    by  reason  of 
not  having  the  hotel   located  at  Sherman 
Center,   besides  the  cost   of    moving    the 
building,  was   from   $L20(l   to   Sl.aUO,  and 
that  it  would  costab(nit  $800  to  move  the 
building.     The  questions   asked  Were  ob- 
jectionable, and   the  testimony  given  was 
inadmissible,  upon   two   grounds:     First, 
the  questions  were  objectionable  because 
thev   did  not  call   for  specilic  facts,    l)ut 
permitted   the    witness    to   state  a   mere 
opinion,  giving  in  the  lump  the  amount  of 
damages    thought   to   be  sustained.     It  is 
the  function   of   the  court   or  jury  trying 
the  case  to  determine  from  evidence  prcjp- 
erly  presented  what  the  amount   of  dam- 
ages sustained   is,  and,  while  it   might   be 
very  convenient   for   the   plaintiff    to   per- 
mit  him    and    his   witnesses   to    give   the 
damages  suffered  in  a  lump,  it  would  be  a 
very    unsafe   j)ractice   to   allow^   them    to 
state  the  amount  of  damages  .supposed  to 
be  sustained,  without  regard  to  the  facts 
or  knowledge  upon  which    their  opinions 
were   based.""    It  is  well   settled    that    the 
practice  is   not     permissible.     Roberts    v. 
Commissioners,  21  Kan.  21S;  Railroad  Co. 
V.  Kuhn,  oS   Kan.   07."i,    17    Pac.    Rep.   322; 
Town   Co.  V.  Morris,  39   Kan.  377.  18   Pac. 
Rep.  230;  Railv\-ay  Co.  v.  Neiman,  45  Kan. 
ri3i.  2">  P^c.  21'.     'J  lien.asMin,  t he  proKj)tct- 
ive  profits    that   he  lost  by  the  breach  of 
the  contract   are   too   remote,  uncertain, 
and   speculative  to  be  recoverable.     Who 
can  tell  what  the  future  gains  of  the  hotel 
business  would    have    been    in    Sherman 
Center,  if   he  had  moved   there?     His  past 
profits   in    Itasca    were  not   shown,    and 
there  is  no  testimony  of  the  gains  of  oth- 
ers established    in  the  same   business   at 
Sherman   Center.     How,  then,  does  Leon- 
ard   know    that  the   prolits    would    have 
been   .fl.")0  per   month?    The  gains   to  be 
derived   from   the  business  depended  upon 
many  contingencies   other  than   the  mere 
removal  of  his  hotel   to  that  place.     The 
growth  of  the  town;  the  location  of  the 
county-seat   there    or    at    another    town 
near  by;    the    immigration   and     travel; 
the  competition  in  the  hotel  busin*>ss;  the 
price  of   provisions   and   the  cost  of  help ; 
the  general  reputation  of   the  house;  and 
the  popularity   of   the  landlord  with  the 
traveling   public   and    the   people  of  that 
community,— aresuggested  as  some  of  the 
considerations  that    would   affect  the  an- 
ticipated  benefits.     Where  the  breach  of  a 


14S 


DIRECT  AND  CONSEQUENTIAL  DAMAGES-IN  CONTRACT. 


contract  results  in  the  loss  of  definite 
profits,  wliich  are  ascertainable,  and  were 
within  the  contemplation  of  the  contract- 
ins:  parties,  they  may  g-enerally  be  recov- 
ered ;  but  the  prospective  profits  do  not 
furnish  the  correct  measure  of  damages  in 
the  present  case.  Aside  from  the  remote, 
conjectural,  and  speculati%'e  character  of 
the  anticipated  benefits,  it  cannot  be  said 
that  the  Urns  of  them  is  the  direct  and  un- 
avoidable consequence  of  the  breach, 
Tlie  plaintiff  could  not  sit  idle  an  indefi- 
nite length  of  time  and  safely  count  on  the 
recovery  of  $150  per  month  as  damages. 
If  there  was  a  breach  of  the  contract,  it 
was  his  duty,  upcni  learning  of  it,  to  at 
once  remove  the  building,  or  employ  otii- 
ers  to  do  so,  and  charge  the  cost  of  tlie  re- 
moval to  the  town  company.  The  law 
requires  that  the  injured  party  shall  do 
whatever  he  reasonably  can,  and  improve 
all  reasonable  opportunities  to  lessen 
the  injury.  From  the  testimony  it  ap- 
pears that  Leonard  could  ha%'e  procured 
others  to  move  the  hotel;  and  in  such  a 
case  the  ordinary  measure  of  damageo  is 
the  cost  of  removal,  and  the  reasonable 
expenses  of  avoiding  the  consequence  of 
the  defendant's  wrong.  Eailw-ay  Co.  v. 
Mihlraan,  17  Kan.  224;  Loker  v,  Damon. 
17  Pick.  284;  1  Sedg.  Dam.  165,  and  cases 
cited.    Counsel  for  plaintiff  in  error  say 


that  no  more  than  the  cost  of  removal 
was  allowed  by  the  court;  but  the  ad- 
mission of  the  objectionable  evidence, 
against  the  opposition  of  the  plaintiff  in 
error,  would  indicate  that  the  court 
adopted  an  incorrect  measure  of  damages, 
and  did  not  limit  the  recovery  to  the  ex- 
pense of  tiie  removal.  The  liability  of  the 
plaintiff  in  error  for  any  loss  is  not  con- 
ceded. It  is  shown  in  tlie  testimony  that 
soon  after  the  time  for  the  removal  of  the 
building  the  peopie  of  Siierman  Center 
abandoned  the  attempt  to  obtain  the 
county-seat,  and  all  or  nearly  all  of  them 
moved  to  another  place.  It  is  claimed 
by  plaintiff  in  error  tliat  Leonard  objected 
to  the  removal  of  his  building  until  the 
question  of  tiie  location  of  the  county-seat 
was  settled.  He  testified  at  the  trial  tiiat 
he  did  not  intend  to  move  the  building 
to  Sherman  Center,  and  that  he  would 
not  move  the  building  at  all,  until  the 
county-seat  was  permanently  located.  If 
the  non-removal  of  the  building  was  due 
to  the  fault  of  Leonard,  he  is  not  entitled 
to  recover  anything.  This  is  a  disputed 
question  of  fact,  which  must  be  settled  on 
another  trial.  For  the  error  of  the  court 
in  admitting  testimony  the  judgment  of 
the  court  below  will  be  reversed,  and 
cause  remanded  for  a  new  trial.  All  the 
justices  concurring. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES-IN  CONTRACT.  149 


THOMAS,  BADGLEY  &  W.  MANUF'G  CO. 
V.  WABASH,  ST.   L.   &  P.  RY.   CO. 

(22  N.  W.  827,  62  Wis.  042.) 

Supreme  Court  of  Wisconsin.     March  31,  1885. 

Appeal  from  circuit  court,  Milwauliee  coun- 
ty. 

Chapin,  Dey  &  Friend,  for  appellant.    Van 
Dyke  &  Van  Dyke,  for  respondent. 

COLE,  C.  J.  On  the  tenth  of  November, 
1882,  the  plaintiff,  as  consignee,  caused  to  be 
delivered  to  the  defendant,  a  common  car- 
rier, at  SL  Louis,  a  pipe-machine,  circular 
shaft,  box  of  dies,  and  wrenches  accompany- 
ing, and  being  a  part  of  tlie  pipe-machine, 
to  be  transported  over  its  road  and  connect- 
ing lines  to  Milwaukee.  The  machine  and 
its  attachments  were  badly  broken  and  de- 
stroj-ed  while  in  the  custody  of  the  defend- 
ant through  the  negligence  of  its  servants. 
The  machine  was  a  patented  one,  and  the 
right  to  make  and  sell  it  was  vested  in  the  j 
manufacturer  at  St.  Louis,  of  whom  it  was 
purchased  by  the  plaintiff.  The  machine 
was  devised  for  cutting  pipe  and  making 
nipples,  and  was  ordered  by  the  plaintiff  to 
be  used  in  its  business  in  Milwaukee,  of 
fitting  pipe  and  manufacturing  brass  goods, 
etc.  The  plaintiff  sues  to  recover  damages 
for  the  loss  of  the  machine,  and  the  loss  of 
its  use  in  its  business  while  another  was  be- 
ing procured.  The  case  was  tried  by  a  jury, 
which  found  a  special  verdict.  The  plaintiff 
had  judgment  for  the  value  of  the  machine, 
which  was  proven  to  be  $275,  and  for  the  loss 
of  its  use  for  85  days,  at  the  rate  of  $1.-50  per 
day,  and  interest  thereon  from^  the  com- 
mencement of  the  action. 

The  questions  presented  on  the  appeal  are 
as  to  the  proper  rule  of  damages.  There 
was  evidence  which  tended  to  show  that  the 
machine,  though  badly  broken  and  some  of 
Its  parts  destroyed,  might  have  been  repaii*- 
€d  by  the  patentee  at  St.  Louis,  who  was 
the  manufacturer.  The  plaintiff  refused  to 
accept  the  machine  at  Milwaukee,  but  left 
it  in  the  possession  of  the  carrier,  and  or- 
dered a  new  machine  of  the  manufacturer. 
One  question  arising  in  the  record  is  wheth- 
er it  was  the  duty  of  the  plaintiff,  under  the 
circumstances,  to  have  received  the  machine 
in  its  damaged  condition,  and  to  have  made 
proper  and  reasonable  exertions  to  have  it 
repaired,  so  as  to  render  the  loss  to  the  car- 
rier as  light  as  possible.  There  is  a  class  of 
cases  which  decide  that  it  is  not  only  the 
moral  but  the  legal  duty  of  a  party  who 
seeks  redress  for  another's  wrong,  to  make 
use  of  his  opportunities  of  lessening  the  dam- 
age caused  by  the  other's  default.  If  it  had 
been  within  the  power  of  the  plaintiff  to 
have  supplied  the  broken  parts  of  the  ma- 
chine, or  to  have  repaired  it  with  i-eason- 
iihlc  labor  and  expense,  it  might  have  been  its 
duty  to  have  done  so  within  this  rule  of  law. 
But  the  jury  found  that  the  machine  when 


delivered  was  useless;  that  the  cost  and  ex- 
pense to  the  plaintiff  to  repair  it  would  have 
amounted  to  the  price  of  a  new  machine. 
This  finding  is  criticised  by  the  counsel  for 
the  defendant,  but  we  ai-e  not  inclined  to  dis- 
turb it. 

As  we  have  said,  the  machine  was  a  pat- 
ented one;    its  parts  were  not  kept  for  sale 
in  the  open  market;   and  there  was  evidence 
that  it  would  cost  any  one  but  the  manu- 
facturer more  to  make  the  patterns  for  the 
castings  than  the  price  of  a  new  machine. 
I'he  plaintiff,  therefore,  could  not  have  had 
the  machine  repaired  in  Milwaukee  at  any 
saving  to  the  carrier.    But  it  is  said  it  might 
have  returned  the  machine  to  the  manufac- 
turer in  St.  Louis,  who  testified  that  it  could 
have  been  repaired  for  $75.    True,  the  manu- 
facturer, in  answer  to  this  hypothetical  ques- 
tion, namely,  "Supposing  the  bottom  part  of 
the  machine  was  broken  in  two  pieces,  the 
attachments    consisting    of    a    box   of    dies 
broken  open  and  contents  scattered  in  the 
car,  oil-cup  on  the  machine  burst,  skids  on 
which  machine  and  attachments  were  origi- 
nally placed  broken,  legs  on  standard  of  ma- 
chine broken,  and  rods  connected  with  them 
bent,  v.hat  was  the  damage,  in  your  estima- 
tion, to  the  machine?"— the  witness  said  the 
question  was  a  diificult  one  to  answer,  but 
added,  as  we  understand   him,  that  if   the 
damages    supposed    included    all    that    was 
done  to  the  machine,  and  none  of  the  parts 
Avere  missing,  and  no  other  injury  was  done 
to  it,  then  it  would  cost  about  $75  to  repair 
it.    But  the   witness  subsequently   modified 
his  statements  upon  this  point  by  saying  that 
with  the  fi-agments  of  the  machine   which 
he   received   from   the  defendant,   it   would 
cost  not  less  than  $2-50  to  repair  it.    It  ap- 
peared that  some  of  the  most  expensive  pai-ts 
were  missing,  and  in  the  state  of  the  proof 
the  jury  might  well  find,  as  they  did,  that 
the  cost  and  expense  to  the  plaintiff  at  the 
time  to  have  the  machine  repaired  by  the 
manufacturer,  and  the  broken  parts  replac- 
ed, would  be  as  much  as  the  price  of  a  new 
machine.    It  is  veiT  clear  that  the  machine 
in  its  damaged  condition  was  of  no  value  to 
the  plaintiff'.    It  was  not  a  case  of  a  partial 
but  of  a  total  loss,  so  far  as  plaintiff  was 
concerned.    The  general  rule  of  damages  for 
the  loss  of  goods  by  a  carrier,  where  it  is 
liable  for  such  loss,  is  the  value  of  the  goods 
at  the  destination  to  which  it  undertook  to 
cany  them,  with  interest  on  such  value  from 
the  time  when  the  goods  should  have  been 
delivered.    Nudd  v.  WeUs,   11  Wis.  408;    2 
Sedg.  Dam.  94,  note  b;    Hutch.  Carr.  §  769. 
The  plaintiff  did  not  claim  to  recover  more 
for  the  machine  than  it  had  paid  for  it  at 
St.  Louis,  to-wit,  $275.    It  appeared  that  it 
had  paid  the  freight,  $3.85,  which  of  course 
should  be  added  to  the  recovery.    So  our  con- 
clusion upon  this  branch  of  the  case  is  that 
the  court  below  was  right  in  allowing  the 
plaintiff  to  recover  upon  the  verdict  the  cost 
of  the  machine.    There  was  a  stipulation  in 


150 


DlilECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


the  bill  of  lading  that  in  case  of  loss  or  dam- 
age to  goods  during  transportation,  whereby 
the  defendant  incurred  a  responsibility,  that 
then  it  should  only  be  liable  for  the  value  of 
the  property  computed  at  the  place  and  time 
of  shipment.  This  -was  precisely  the  extent 
of  the  recovery  on  this  item  of  damages. 

The  next  question  is,  was  the  plaintiff  en- 
titled to  recover  for  the  loss  of  the  use  of 
the  machine  while  another  was  being  pro- 
cured to  supply  the  place  of  the  one  destroy- 
ed? This  question,  upon  the  circumstances 
of  this  case,  we  think  must  be  answered  in 
the  negative.  In  the  first  place,  it  is  to  be  ob- 
served that  there  is  no  allegation  in  the  com- 
plaint, and  no  proof  was  give  on  the  part  of 
the  plaintiff,  which  tended  to  show  that  the 
defendant  had  notice  of  the  use  to  which  the 
machine  was  to  be  put,  or  even  knew  that  the 
plaintiif  intended  to  use  it  in  its  business. 
On  the  contrary,  the  agent  of  the  defendant 
who  made  the  contract  of  shipment  says  he 
had  no  notice  of  the  puiiDose  for  which  the 
machinery  was  to  be  used.  He  said  he  was 
applied  to  by  the  manufacturer  in  St.  Louis 
about  this  particular  shipment,  and  gave 
special  rates,  less  than  the  regular  tariff,  on 
representation  made  by  the  manufacturer 
that  the  goods  were  not  liable  to  injury,  and 
that  he  Avanted  to-  introduce  the  machine, 
which  was  a  new  one,  through  the  west,  and 
wished  the  assistance  of  the  witness  in  do- 
iug  so.  This  is  all  the  knowledge  the  de- 
fendant had  about  the  property,  or  the  use 
to  which  it  was  to  be  put.  It  is  said  the 
fact  that  the  consignee  in  the  bill  of  lading 
was  a  manufacturing  company  was  sutficient 
notice  that  the  machine  was  intended  to  be 
used  by  it  in  its  business.  We  do  not  think 
so.  The  defendant  certainly  had  no  notice 
of  the  business  in  which  the  plaintiff"  was 
engaged,  and  did  not  know  that  this  ma- 
chine had  been  procured  for  fitting  pipe  and 
making  nipples.  Should  we  presume— as  we 
have  no  right  to  do— that  the  defendant  had 
knowledge  of  plaintiff's  business,  surely  we 
could  not  presume  that  this  machine  was 
ordered  by  it  for  immediate  use. 

This  being  the  state  of  the  evidence,  on 
what  ground  can  the  plaintiff  claim  dam- 
ages for  loss  in  the  use  of  the  machine?  The 
president  of  the  plaintiff  testified  that  his 
company  was  doing  business  of  steam-fitting 
and  selling  pipe  at  wholesale,  and  in  the>-faJl 
of  1882  he  vv'as  told  he  Avould  need  a  ma- 
chine to  cut  the  pipe.  This  was  the  reason 
for  buying  the  machine.  He  says:  "We 
were,  besides,  doing  some  steam-fitting  our- 
selves, and,  of  course,  we  have  to  cut  pipe 
all  the  time  to  get  special  lengths,  and  in- 
stead of  using  men  we  paid  a  man  to  do  it 
with  the  machine.  The  machine  would  do 
the  work  of  one  man."  This  is  really  all 
there  is  in  the  case  to  base  a  claim  for  loss 
in  the  use  of  the  machine  upon.  The  de- 
fendant did  not  know  what  the  machine  was 
designed  for;  did  not  know  the  use  to  which 
it  was  to  be  put;    did   not  even   know   the 


plaintiff  would  use  it;  and,  of  course,  did 
not  know  that  the  plaintiff"  would  sustain 
any  special  damage  if  the  property  failed  to 
be  delivered  promptly,  in  good  order.  From 
the  nature  of  the  subject  it  is  difficult  to 
state  an  inflexible  rule  of  damages  which 
will  apply  to  all  contracts.  This  court  has 
often  referred  to,  and  has  practically  acted  • 
upon,  the  rule  laid  down  in  the  leading  case 
of  Hadley  v.  Baxendale,  9  Exch.  341.  In 
that  case  the  plaintiff's,  who  were  owners  of 
a  flour-mill,  sent  a  broken  iron  shaft  to  aa 
office  of  the  defendant,  a  common  caiTier,  to 
be  conveyed  to  the  consignee,  to  have  a  new 
shaft  made.  The  defendant's  clerk  was  told 
that  plaintiff's  mill  was  stopped,  and  that 
the  broken  shaft  must  be  delivered  immedi- 
ately to  the  consignee,  but  it  was  delayed 
for  an  unreasonable  time.  In  consequence 
of  the  delay  the  plaintiffs  did  not  receive  the 
new  shaft  for  some  days  after  the  time  they 
ought  to  have  received  it,  and  they  Vv'ere 
unable  to  work  their  mill  for  want  of  the 
new  shaft,  and  thereby  incurred  a  loss  of 
profits.  The  court  held  that  under  the  cir- 
cumstances such  loss  could  not'''be  recovered 
in  an  action  against  the  common  carrier, 
because  the  special  circumstances  were  nev- 
er communicated  to  it  by  the  plaintiff"s.  Al- 
derson,  B.,  in  giving  the  decision,  states  the 
rule  of  damages  as  follows: 

"Where  two  parties  have  made  a  contract,. 
Avhich  one  of  them  has  broken,  the  damages 
which  the  other  party  ought  to  receive  in  re- 
spect of  such  breach  of  contract  should  be 
such  as  may  fairly  and  reasonably  be  con- 
sidered either  arising  naturally,  i.  e.,  ac- 
cording to  the  usual  course  of  things,  from, 
such  breach  of  contract  itself,  or  such  as- 
may  reasonably  be  supposed  to  have  been  in 
the  contemplation  of  both  parties,  at  the 
time  they  made  the  contract,  as  the  prob- 
able result  of  the  breach  of  it.  Now,  if  the 
special  circumstances  under  which  the  con- 
tract was  actually  made  were  communicated 
by  the  plaiutift"s  to  the  defendants,  and  thus 
known  to  both  parties,  the  damages  result- 
ing from  the  breach  of  such  a  contract,  which 
they  would  reasonably  contemplate,  would 
be  the  amount  of  injury  which  would  ordi- 
narily follow  from  the  breach  of  contract 
under  these  special  cii'cumstances  so  known, 
and  communicated.  But,  on  the  other  hand, 
if  these  special  circumstances  were  wholly 
unknown  to  the  pai-ty  breaking  the  contract, 
he,  at  the  most,  could  only  be  supposed  to 
have  had  in  his  contemplation  the  amount 
of  injury  which  would  arise  generally,  and, 
in  the.  great  multitude  of  cases,  not  affected 
by  any  special  circumstances  from  such  a 
breach  of  contract." 

This  rule  has  been  sometimes  criticised, 
and  it  has  been  said  that,  generally,  when 
parties  enter  into  a  contract,  they  do  not 
contemplate  its  breach  or  the  probable  result 
of  a  breach,  and  that  the  I'ule  might  be  more 
accurately  expressed.  See  Palles,  C.  B.,  in 
Hamilton  v.  McGill,  12  Ir.  Law,  202.    But, 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN   CONTllACT. 


151 


without  refining  on  tlio  rule,  its  application 
to  the  question  we  ai"e  considering  is  ob- 
vious and  decisive;  for  here  the  defendant 
was  not  informed  by  the  plaintiff  that  tlie 
juachino  was  one  which  it  needed  for  use  in 
its  business  of  cutting  and  fitting  pipe,  and 
that  it  Avas  procured  for  that  puiijose.  If 
one  desires  to  trace  the  judicial  discussion 
of  the  rule  in  Hadley  v.  Baxendale,  he  will 
find  a  most  excellent  and  accurate  analysis 
of  the  Englisli  and  American  decisions  in 
note  a,  1  Sedg.  Dam.  (Tth  Ed.)  top  p.  218. 
Also  see  note  2  to  section  772,  Hutch.  Carr. 
p.  G97. 

In  Bray  ton  v.  Chase,  3  Wis.  45G,  which 
was  an  action  by  the  vendee  against  the 
vendor  for  failure  to  deliver  a  reaper  which 
the  plaintiff  purchased  to  harvest  his  crops, 
the  plaintiff  sought  to  prove  that  he  suffered 
great  loss  and  damage  in  his  crops,  and  in 
the  extra  expense  of  hiring  hands,  by  rea- 
son of  the  non-fulfillment  of  the  contract  to 
deliver.  The  evidence  was  excluded,  and 
this  court  atSrmed  the  ruling,  holding  tBat 
such  damages  did  not  result  naturally  and 
directly  from  the  injury  complained  of.  It 
may  be  doubtful  whether  this  decision  is 
entirely  consistent  with  Richardson  v.  Chyno- 
Aveth,  20  Wis.  656;  Smeed  v.  Foord,  1  El.  & 
El.  602;  Gee  v.  Railway  Co.  6  Hurl.  &  N. 
211;  Collar d  v.  Railway  Co.  7  Hurl.  &  X.  79; 
Elbinger  Actien-Gesellschafft  v.  Armstrong, 
L.  R.  9  Q.  B.  473;  Wilson  v.  Railway  Co.  9 
C.  B.  (N.  S.)  632;  Griffin  v.  Colver,  16  N.  Y. 
490;  Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  46 
Miss.  458;  and  cases  of  that  class.  For,  as 
we  undei-stand  the  Bi-ayton  Case,  the  vendor 
knew  that  the  reaper  was  wanted  for  the 
purpose  of  harvesting  the  plaintiff's  crop 
that  season.  If  it  were  not  delivered  in  time 
for  that  puiijose  the  parties  might  well  be 
presumed  to  have  known  that  the  vendee 
would  be  put  to  additional  expense  in  secur- 
ing his  crops.  But  still  the  case  is  fully  sup- 
ix)rted  by  British  Columbia  Saw-mill  Co.  v. 
Nettleship,  L.  R.  3  C.  P.  499.  In  this  cfse 
"the  plaintiffs  delivex-ed  to  the  defendant's 


servants,  on  a  quay  at  Glasgow,  for  sliip- 
meut  on  board  the  defendant's  ves.sol,  whicii 
lay  along-side,  several  cases  containing  ma- 
chinery, which  was  intended  for  the  erec- 
tion of  a  saw-mill  at  Vancouver's  island. 
The  master  gave  a  bill  of  lading  for  ihem, 
describing  tlie  cases  as  containing  "raercluin- 
dise."  The  defendant  knew  generally  of 
what  the  shipment  consisted.  Un  the  ar- 
rival of  the  vessel  at  her  destination,  one  of 
the  cases,  which  contained  machinery  Avith- 
out  Avhich  the  mill  could  not  be  erected, 
could  not  be  found  on  board,  and  the  plain- 
tiffs Avere  obliged  to  send  to  England  to  re- 
place the  lost  article.  Held,  that  the  defend- 
ant was  liable  for  the  loss  of  the  macliinery, 
as  delivery  to  the  defendant's  servants  along- 
side the  vessel  Avas  equivalent  to  a  deliveiy 
on  board.  Held,  also,  that  the  measure  of 
damages  for  the  breach  of  the  contract  Avas 
the  cost  of  replacing  the  lost  articles  in  A'an- 
couver's  island,  with  interest  at  5  per  cent, 
upon  the  amount  until  judgment,  by  Avay  of 
compensation  for  the  delay." 

But  we  deem  it  unnecessary  to  pursue  this 
discussion  further.  The  case  of  BroAvn  v. 
RailAvay  Co.  54  Wis.  342,  S.  C.  11  N.  W.  35(5, 
911,  is  referred  to  by  plaintiff's  counsel  to 
sustain  the  claim  for  damages  for  loss  of  tlie 
use  of  the  machine;  but  that  was  a  case  lor 
a  personal  injury  and  has  no  application  to 
this  case.  We  have  already  said  that  the 
jury  found  that  the  machine  was  so  dam- 
aged, while  in  the  custody  of  the  defendant 
as  carrier,  as  to  be  entirely  useless  to  the 
plaintiff.  The  plaintiff  is  therefore  entitled 
to  recover  the  value  of  the  machine,  found 
to  be  $275,  including  the  freight  paid  by 
plaintiff  of  $3.85,  and  interest  on  this  amount 
from  November  22,  1882,  the  time  the  prop- 
erty reached  its  destination. 

BY  THE  COURT.  The  jtidgment  of  the 
circuit  court  is  reversed,  and  the  cause  is 
remanded,  with  directions  to  enter  judgment 
on  the  verdict  in  accordance  with  this  opin- 
ion. 


152 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  CONTRACT. 


BRIGHAM  et  al.   v.   CARLISLE. 

(78  Ala.  243.) 

Supreme  Court  of  Alabama.    Dec.  Term,  1884. 

Appeal  from  circuit  court,  Lee  county; 
Henry  D.  Clayton,  Judge. 

Action  against  Brigham  &  Co.  for  breach 
of  a  contract  employing  plaintiff  as  a  trav- 
eling salesman  to  sell  goods  on  commission. 
There  was  a  judgment  for  plaintiff,  from 
which  defendants  appealed. 

J.  M.  Chilton,  for  appellants.  W.  H. 
Barnes,  contra. 

CLOrTON,  J.  It  may  be  conceded  that 
at  common  law  a  defendant  can  insist  upon 
the  benefit  of  the  statute  of  frauds  by  plea 
of  the  general  issue.  Under  our  statute, 
which  provides  that  "in  all  suits  where  the 
defendant  relies  on  a  denial  of  the  cause  of 
action  as  set  forth  by  the  plaintiff  he  may 
plead  the  general  issue,  and  in  all  other 
cases  the  defendant  must  briefly  plead  spe*- 
cially  the  matter  of  defense."  The  statute  of 
frauds  must  be  pleaded,  or  it  will  be  consid- 
ered as  waived.  Ritch  v.  Thornton,  05  Ala. 
309;  Petty  v.  Dill,  53  Ala.  G41.  No  plea  of  the 
statute  of  frauds  having  been  interposed,  the 
validity  of  the  contract,  because  not  in  writ- 
ing, cannot  be  raised  by  a  charge. 

If  the  statute  had  been  pleaded,  the  con- 
tract, as  set  out  in  the  bill  of  exceptions, 
does  not  come  within  its  inhibition.  It  was 
made  in  September,  1881,  and,  as  testified 
by  the  plaintiff,  was  to  commence  on  the 
1st  of  October,  and  continue  at  least  eight 
months,  and  longer  if  mutually  desirable  at 
the  end  of  that  time.  By  its  terms  it  was 
capable  of  performance  within  a  year.  The 
statute  applies  to  contracts  which,  by  ex- 
press stipulation,  are  not  to  be  performed 
within  one  year  from  the  making  thereof, 
and  not  to  contracts  which  by  their  terms  are 
determinate  within  that  period,  but  may  be 
continued  longer  at  the  option  of  the  parties. 
Heflin  v.  Milton,  GO  Ala.  354. 

The  third  charge  requested  by  the  defend- 
ants based  their  right  to  abandon  the  con- 
tract on  the  naked  fact,  unexplained,  that  the 
plaintiff  did  not  commence  the  performance 
of  the  contract  until  January  1,  1882.  The 
violation  of  a  contract  by  one  of  the  parties, 
or  when  he  is  unable  to  perform  the  acts  or 
services  stipulated,  may  be  suflicient  to  au- 
thorize the  other  party  to  abandon  it.  Sick- 
ness of  the  plaintiff  for  a  protracted  period, 
such  as  would  probably  have  disabled  him 
from  making  sales  during  the  appropriate 
season,  as  contemplated  and  intended  by 
the  contract,  might  perhaps  have  authorized 
the  defendants  to  abandon  the  contract;  but 
there  was  no  implied  condition  that  the 
plaintiff  would  continue  in  health.  Its 
abandonment  in  such  case  is  at  the  election 
of  the  defendants;  and  they  will  be  held  to 
have  waived  their  right  to  renounce  the  con- 
tract when,  after  Uie  delay  has  terminated, 


they  regard  and  treat  it  as  continuing  and 
in  force.  Stewart  v.  Cross,  06  Ala.  22^  The 
charge  requested  by  the  defendants  ignored 
the  material  facts:  the  detention  of  the 
plaintiff  by  sickness  in  New  York  until  near 
the  end  of  November;  the  letter  of  the  de- 
fendants of  December  12th,  in  i-eply  to  one 
from  the  plaintiff,  in  which  they  stated 
samples  would  be  furnished  him  during  the 
week,  and  cautioning  him  as  to  the  credit  of 
certain  firms,  and  samples  having  been  ac- 
tually sent  to  him  late  in  December;  which 
facts  there  was  evidence  tending  to  prove. 
Whilst  a  party  has  the  right  to  require  an 
instruction  as  to  the  legal  effect  of  the  evi- 
dence, when,  conceding  all  adverse  infer- 
ences from  the  conflicting  evidence,  the  un- 
disputed facts  establish  a  legal  conclusion 
in  his  favor,  a  charge  is  properly  refused 
which  asserts  a  legal  proposition,  based 
on  certain  specified  facts,  but  ignores  other 
facts,  which  there  is  evidence  tending  to 
prove,  showing  the  incorrectness  of  the  le- 
ga?  conclusion  asserted  in  the  charge. 

The  burden  of  proof  is  on  the  party  having 
the  affirmative  of  the  particular  issue.  Pleas 
of  payment  and  set-off  were  filed  by  defend- 
ants, and  the  onus  of  establishing  their 
ti-uth  Avas  on  them.  The  legal  effect  of  the 
second  charge  requested  by  the  defendants 
is  to  instruct  the  jury,  if  they  found  the  evi- 
dence in  equilibrium  on  any  or  all  the  issues 
presented,  which  includes  the  issues  of  pay- 
ment and  set-off,  to  find  for  the  defendants. 
Being  calculated  to  mislead,  it  was  properly 
refused. 

The  material  'question  is  the  measure  of 
damages.  The  primary  purpose  of  awarding 
damages  is  actual  compensation  to  the  party 
injured,  whether  by  a  tort  or  by  breach  of  a 
contract;  though  there  are  exceptional  cases 
in  which  exemplary  or  punitive  damages  are 
allowed.  Owing  to  the  ever-occurring  differ- 
ences in  the  circumstances,  and  in  the  spe- 
cial conditions  of  the  contracting  parties,  it 
has  been  found  diflicult,  if  not  impossible, 
to  lay  down  general  and  definite  rules  as  to 
the  measure  of  damages,  applicable  to  all 
cases  of  a  class.  From  a  misconstruction  of 
expressions  of  eminent  jurists,  not  suffi- 
ciently guarded  for  general  use,  but  adapted 
to  the  case  in  hand,  the  applications  of  mles 
commonly  recognized  have  been  as  various 
as  the  cases.  The  proposition  that  all  dam- 
ages are  recoverable  which  are  in  the  con- 
templation of  the  parties,  is  not  strictly  cor- 
rect. The  primary  rules  are,  the  damages 
must  be  the  natural  and  proximate  results 
of  the  wrong  complained  of,  and  must  not 
be  merely  speculative  or  conjectural.  These 
must  concur,  though  founded  on  dift'erent 
principles,  and  are  distinct  and  independ- 
ent of  each  other.  The  law  presumes  that 
a  party  foresees  the  natural  and  proximate 
results  of  a  breach  of  his  contract  or  tort, 
and  hence  these  are  presumed  to  be  in  his 
legal  contemplation.  For  such  damages,  as 
a  general  rvile,  the  party  at  fault  is  liable. 


DLKECT  A^"D  CONSEQUENTIAL  DAMAGES— IN^  CONTRACT. 


15a 


But  there  are  damages,  -which  are  in  the 
contemplation  of  the  parties  at  the  time  of 
maliiugthe  contract,  and  are  the  natural  and 
proximate  results  of  its  breach  which  are  not 
recoverable.  The  parties  must  necessarily 
contemplate  tlie  loss  of  profits  as  the  direct 
and  necessary  consequence  of  the  breach  of 
a  contract,  and  yet  all  profits  are  not  with- 
in the  scope  of  recoverable  damages.  There 
are  numerous  cases,  however,  in  which  prof- 
its constitute,  not  only  an  element,  but  the 
measure,  of  damage.  While  the  line  of  de- 
marcation is  often  dim  and  shadowy,  the 
distinctive  featured  consist  in  the  nature 
and  character  of  the  profits.  When  they 
form  an  elemental  constituent  of  the  con- 
tract, their  loss  the  natural  result  of  its 
breach,  and  the  amount  can  be  estimated 
with  reasonable  certainty,— such  certainty  as 
satisfies  the  mind  of  a  prudent  and  impaj-tial 
person,— they  are  allowed.  The  requisite  to 
their  allowance  is  some  standard,  as  regular 
market  values,  or  other  established  data,  by 
reference  to  which  the  amount  may  be  sat- 
isfactorily ascertained.  Illustrations  of  prof- 
its recoverable  are  found  in  cases  of  sales 
of  personal  property  at  a  fixed  price,  evic- 
tions of  tenants  by  landlords,  articles  of  part- 
nership, and  many  commercial  contracts. 

On  the  other  hand,  "mere  speculative  prof- 
its, such  as  might  be  conjectured  would  be 
the  probable  result  of  an  adventure,  defeated 
by  the  breach  of  a  contract,  the  gains  from 
which  are  entirely  conjectural,  and  with  re- 
spect to  which  no  means  exist  of  ascertain- 
ing even  approximately  the  probable  results, 
cannot,  under  any  circumstances,  be  brought 
within  the  range  of  recoverable  damages." 
1  Suth.  Dam.  141.  Profits  speculative,  con- 
jectural or  remote  are  not,  generally,  regarded 
as  an  element  in  estimating  the  damages.  In 
Pollock  V.  Gantt,  GO  Ala.  373,  it  is  said: 
*'What  are  termed  'speculative  damages' — 
that  is,  possible,  or  even  probable,  gains,  that 
it  is  claimed  would  have  been  realized  but 
for  the  tortious  act  or  breach  of  contract 
charged  against  a  defendant— are  too  remote, 
and  cannot  be  recovered."  The  same  rule  has 
been  repeatedly  asserted  by  this  court.  Cul- 
ver V.  Hill,  GS  Ala.  GG;  Higgins  v.  Mansfield, 
62  Ala.  2G7;  Burton  v.  Holley,  29  Ala.  318; 
White  V.  Miller,  71  N.  Y.  118;  French  v. 
Ramge,  2  Neb.  254;  2  Smith,  Lead.  Cas.  574; 
Olmstead  v.  Burke,  25  111.  8G.  The  two  fol- 
lowing cases  may  serve  to  illustrate  the  dif- 
ference between  profits  recoverable  and  not 
recovei-able.  In  Insurance  Co.  v.  Noxson; 
S4  Ind.  347,  an  insurance  agent,  who  had 
been  discharged  without  cause  before  the 
expiration  of  his.  contract,  was  allowed  to 
include  in  his  recovery  the  probable  value  of 
renewals  on  policies  previously  obtained  by 
him,  upon  which  future  premiums  would,  in 
the  usual  course  of  biisiuess,  be  received  by 
the  company,  on  the  ground  that  the  amount 
of  compensation  due  on  such  renewals  can 
be  ascertained  with  requisite  certainty  by 
the  use  of  actuary's  life  tables  and  compari- 
sons, and  that  the  basis  of  the  right  to  dam- 


ages existed,  and  was  not  to  be  built  in  the 
future.  In  I^ewis  v.  Insurance  Co.,  Gl  Mo. 
534,  which  is  cited  with  approval  in  the 
other  case,  the  same  i-ule  as  to  the  probable 
value  of  renewals  was  held;  but  it  was  also 
held  tliat  an  estimate  of  the  probable  earn- 
ings of  the  agent  thereafter,  derived  from 
proof  of  the  amount  of  his  collections  and 
commissions  before  the  breach  of  the  con- 
tract, in  the  absence  of  other  proof,  is  too 
speculative  to  be  admissible. 

Profits  are  not  excluded  from  recovery  be- 
cause they  are  profits;  but,  when  excluded, 
it  is  on  the  ground  that  there  are  no  criteria 
by  which  to  estimate  the  amount  with  the 
certainty  on  which  the  adjudications  of 
courts  and  the  findings  of  juries  should  be 
based.  The  amount  is  not  susceptible  of 
proof.  In  3  Suth.  Dam.  157,  the  author  dis- 
criminatingly observes:  "When  it  is  ad- 
visedly said  that  profits  are  uncertain  and 
speculative,  and  cannot  be  recovered,  when 
there  is  an  alleged  loss  of  them,  it  is  not 
meant  that  profits  are  not  recovei-able  mere- 
ly because  they  are  such,  nor  because  prof- 
its are  necessarily  speculative,  contingent, 
and  too  uncertain  to  be  proved;  but  they  are 
rejected  when  they  are  so;  and  it  is  probable 
that  the  inquiry  for  them  has  been  generally 
proposed  when  it  must  end  in  fruitless  un- 
certainty; and  therefore  it  is  more  a  general 
truth  than  a  general  principle  that  a  loss  of 
profits  is  no  ground  on  which  damages  can 
be  given."  When  not  allowed  because  specu- 
lative, contingent,  and  uncertain,  their  ex- 
clusion is  founded  by  some  on  the  ground  of 
remoteness,  and  by  others  on  the  presump- 
tion that  they  are  not  in  the  legal  contempla- 
tion of  the  parties. 

The  plaintiff,  by  the  conti-act,  undertook 
the  business  of  traveling  salesman  for  the 
defendants.  The  amount  of  his  commissions 
depended,  not  merely  on  the  number  and 
amounts  of  sales  he  might  make,  but  also  on 
the  proportional  quantity  of  the  two  classes 
of  goods  sold,  his  commissions  being  differ- 
ent on  each.  The  number  and  amounts  of 
sales  depended  on  many  contingencies,— the 
state  of  trade,  the  demand  for  such  goods, 
their  suitableness  to  the  different  markets, 
the  fiuctuations  of  business,  the  skill,  energy, 
and  industi-y  with  which  he  prosecuted  the 
business,  the  time  employed  in  effecting  dif- 
ferent sales,  and  upon  the  acceptance  of  his 
sales  by  the  defendants.  There  are  no  cri- 
teria, no  established  data,  by  reference  to 
which  the  profits  are  capable  of  any  estimate. 
They  are  purely  speculative  and  conjectural. 
Besides,  the  evidence  is  the  mere  opinion 
and  conjecture  of  the  plaintiff,  without  giv- 
ing any  facts  on  which  it  was  based.  The 
bare  statement,  uncoiToborated  by  any  facts, 
and  without  a  basis,  that  "the  reasonable 
sales  would  have  been  fifteen  thousand  dol- 
lars, and  that  the  net  profits  on  that  amount 
of  sales  would  have  been  four  hundred  and 
fifty  dollars,"  is  too  conjectural  to  be  ad- 
missible. Washburn  v.  Hubbard,  10  Laus.  11. 
Reversed  and  remanded. 


154 


DIRECT  AND   CONSEQUENTIAL  DAMAGES-IN   CONTRACT. 


HITCHCOCK   T.    SUPREME   TENT   OF 

KNIGHTS  OF  MACCABEES  OF 

THE   WORLD. 

(58  N.  W.  640,  100  ^Slich.  40.) 

Supreme  Court  of  Micliijriin.     April  10,  1894. 

Error  to  circuit  court,  Saginaw  county; 
.lolin  A.  Eilget,  Judge. 

Action  bj'  Edward  M.  Hitchcock  against 
the  Supreme  Tent  of  the  Knights  of  Mac- 
cabees of  the  A\"orld.  From  a  judgment  in 
his  favor,  phiintifC  brings  error  on  account  of 
insufficiency.    Reversed. 

Tlie  defendant  is  a  corporation  organized 
imder  the  laws  of  this  state,  and  author- 
ized to  issue  endowment  certificates,  payable 
on  the  death  of  members,  to  beneficiaries 
selected  by  them,  and  is  opei'ated  under  the 
lodge  .system,  the  lodges  being  known  as 
"tents."  It  was  incorporated  in  ISS.j  by  five 
incorporators,  three  of  whom  constituted  the 
board  of  trustees.  A  Mr.  Boyntou  was  sec- 
retary and  one  of  the  trustees,  and  to  him 
was  committed  the  chief  management  of 
the  association.  The  organization  appears  to 
have  met  with  great  favor,  and  before  the 
close  of  the  first  year  was  in  active  operation 
in  many  states  and  in  Canada.  It  had  from 
50  to  75  agents  engaged  in  organizing  tents. 
These  agents  were  compensated  by  a  part 
of  a  membership  fee,  a  certificate  fee,  and 
a  quarterly  per  capita  tax.  No  tents  could 
be  instituted  with  less  than  15  members  in 
places  of  5,000  population,  or  Avith  less  than 
25  members  in  places  of  over  5,000  popula- 
tion. Plaintiff  was  a  man  of  considerable 
experience  in  organizing  associations  of  this 
character.  Negotiations  between  him  and 
Mr.  Boynton  resulted  in  the  execution  of  a 
contract  dated  October  5,  1885,  by  which 
plaintiff  was  given  the  sole  control  of  in- 
stituting and  organizing  new  tents  or  subor- 
dinate bodies  in  the  state  of  Indiana.  The 
contract  fixed  the  following  compensation  for 
his  services:  "First.  Sixty  dollars  of  the 
charter  fee  for  each  .tent  he  or  his  deputies 
may  institute  in  said  state  of  Indiana.  Sec- 
ond. AU  the  membership  fee  on  all  over 
fifteen,  and  under  twenty-five,  members  put 
in  new  tents  on  organization.  Third.  One- 
half  the  membership  fee  on  all  members  put 
into  new  tents  on  organization,  over  twenty- 
five  members.  Fourth.  All  the  per  capita 
tax  collected  by  him  from  the  first  fifteen 
members  in  each  new  tent.  Fifth.  One- 
fourth  of  the  annual  per  capita  tax  on  the 
entire  membership  in  the  state  of  Indiana 
shown  to  be  in  good  standing  on  the  books 
of  the  supreme  tent  at  the  close  of  each 
quarterly  term,  the  said  money  to  be  paid  to 
the  said  Hitchcock  within  thirty  days  there- 
after. Sixth.  He  shall  also  receive  as  com- 
pensation for  visiting  organized  tents  within 
the  state,  with  a  view  of  building  them  up 
and  increasing  their  membership,  all  the 
quarterly  per  capita  tax  paid  in  by  new 
members  secured  in  such  work,  and  'also 
such  portion  of  the  membership  fee  as  may 


be  agreed  upon  between  him  and  the  tents. 
The  aforesaid  proportion  of  charter  fee, 
membership  fee,  per  capita  tax,  etc.,  shall 
be  full  and  complete  compensation  for  such 
services."  It  provided,  fvulher,  that  plaiu- 
titf  should  give  his  full  time  and  services 
to  the  work,  and  execute  a  good  and  suf- 
ficient bond,  in  the  sum  of  .?500,  for  the  faith- 
ful performance  of  his  duties,  and  the  tTirn- 
ing  over  all  moneys  belonging  to  the  supreme 
tent.  It  also  contained  the  following  provi- 
sions: "It  is  further  agreed  between  the  par- 
ties hereto  that,  whenever  a  gi'eat  camp  is 
organized  in  said  state,  then  this  agreement 
shall  be  null  and  void,  and  of  no  binding 
force.  It  is  also  agreed  that,  whenever  ei- 
ther party  to  this  agreement  desires  to  can- 
cel the  same,  at  least  thirty  days'  notice  must 
be  given  by  the  party  so  electing.  This 
agreement  cannot  be  canceled  without  the 
consent  of  all  parties  to  the  contract."  No 
great  camp  could  be  organized  in  any  state 
until  there  were  at  least  50  tents  and  2,000 
members.  Plaintiff  furnished  his  bond,  re- 
ceived his  commission,  and  immediately  en- 
tered upon  the  work.  In  13  months  he  had 
organized  10  tents,  wiili  a  total  membership 
of  286.  The  defendant  then  broke  the  con- 
tract, early  in  1887,  and  demanded  a  sur- 
render of  plaintiff's  original  commission, 
which  he  refused,  and  then  left  its  employ. 
The  defendant  immedia^tely  placed  other 
agents  in  the  state,  who  established  40 
tents,  and  brought  the  membership  up  to  a 
sufficient  number  to  establish  a  great  camp. 
Upon  the  trial  the  learned  circuit  judge  di- 
rected a  verdict  for  the  plaintiff,  under 
clause  5,  for  oue-fom'th  of  the  annual  per 
capita  tax  paid  in  by  the  members  of  the 
10  tents  which  he  organized,  and  who  con- 
tinued as  members,  which,  with  interest, 
amounted  to  ^454.25.  As  to  the  other  dam- 
ages claimed,  the  judge  held  that  they  were 
speculative,  that  there  were  no  certain  data 
from  which  they  could  be  computed,  that 
they  were  uncertain  of  ascertainment,  and 
directed  a  verdict  for  the  defendant. 

Rowland  Connor,  for  appellant.  McDonell 
&  Hall,  for  appellee. 

GRANT,  J.  (after  stating  the  facts).  All 
questions  arising  under  this  contract,  except 
that  of  damages,  have  been  determined  in 
favor  of  plaintiff  by  the  verdict  and  judg- 
ment. From  this  determination,  defendant 
has  not  appealed.  The  only  question,  there- 
fore, before  this  court,  is  the  ruling  of  the 
court  below  as  to  the  measure  of  tlie  dam- 
ages. PlaintifC  insists  that  he  introduced 
and  offered  evidence  from  which  the  jm-y 
might,  with  reasonable  certainty,  determine 
the  profits  which  he  might  have  made,  but 
which  were  lost  to  him  by  the  violation  of 
the  contract.  He  gave  evidence  tending  to 
show  the  profits  made  on  the  contract  while 
he  was  engaged  in  the  work.  He  offered  to 
show  that  the  first  labor  of  starting  the  en- 


DIRECT  AND   CONSEQUENTIAL  DAMAGES— IN   CONTRACT. 


155 


teryrise  is  more  expensive  than  that  which 
follows,  and  that  after  the  work  is  faii'ly 
started  it  is  easier  to  oriranize  tents  than  at 
first.  He  also  offered  a  statement  taken 
from  the  books  of  the  defendant,  showing 
the  organization  of  40  tents  after  the  breach 
of  the  contract;  125  members  in  new  tents, 
over  15  and  imder  25;  GB  members  in  new 
tents,  over  25;  and  the  total  number  of 
new  members.  From  this  statement  he 
made  up  his  total  claim,  as  follows:  Char- 
ter fees,  40  tents,  $2,400;  membership  fees 
under  clause  2  of  the  contract,  $025;  •  mem- 
bership fees  under  clause  3,  $1G5;  per  capita 
tax  under  clause  4,  !?oOO;  per  capita  tax  un- 
der clause  5,  $2,950.8o. 

The  rule   governing  th(.^se   cases   is   estab- 
lished by  an  unbroken  line  of  authorities, — 
that  damages  which  are  purely  speculative 
in    character,    and    dependent    on    so    many 
contingencies    that    they    cannot    be    traced 
with  reasonable  certainty  to  the  breach  of 
the  contract,   are   not  allowable.     The   diffi- 
culty lies  in  determining  Avhether  the  facts 
of  a  particular  case  bring  it  within  or  with-  ! 
out  this  rule.     There  is  no  sounder  basis  for 
damages  for  breach  of  contracts  of  this  char- 
acter tlian  the  profits,  when  they  can  be  de- 
termined with  proximate  and  reasonable  cer- 
tainty.    In   fact,   there   is   no    other     basis. 
They  are  the  natiu'al  and  proximate  results  of 
a  breach,  which  the  laAv  presumes  that  each  j 
partj^   foresees.     The  rule  does  not  require   i 
that  such  data  be  furnished  that  they  can  i 
be  computed   with  mathematical  exactness.  \ 
"When  one  breaks  a  conti-act  which  the  other  j 
party  has  partly  performed,  and  the  violator  j 
then  performs  the  work  himself,  from  which  | 
he  has  reaped   the  profits  which   the  other 
party   might   have   made,   he  cannot  escape 
liability  for   damages,    if   such   other   party 
can   show    the   profits   made    while    he    was 
executing  it,  and  the  benefits  received  from  i 
its  subsequent  completion.     The  contract  in 
this    case   was   specific   and   definite   in   all  | 
respects,    fixing   the    amount    of   work,    and 
the    price.     It    was    contemplated    that    the 
plaintiff   shoidd    make    profits,    and    the    de-  \ 
fondant  was  to   be  benefited  by   his   Avork. 
These  results  were  being  successfully  accom- 
plished when  the  contract  was  broken.     In 
case  of  a  breach  by  plaintiff,  defendant  could 
perform  the  work,  and  recover  as  damages 
the  difference  between  the  price  agreed  up- 
on and  the  cost  of  completion.     In  case  of  a 
breach  by  defendant,  the  profits  lost  consti- 
tute  the     legitimate     measure    of    damages. 
The  law  is  not  so  blind  to  justice  as  not  to 
require  the  defendant  to  respond  in  damages, 
if   there    is   any  reasonable   basis   for   their 
ascertainment.     There    is     no     presumption, 
legal  or  otherwise,   that  the   plaintiff  could 
not  have  completed  the  work.     The  defend- 
ant was  satisfied  with   the   success   of  the 
plaintiff.     It  is  a  fair  presumption  that  he 
would  liave  succeeded.     It   is   a  fair   infer- 
ence from  the  evidence  that  the  defendant's 
officers  broke  the  contract  because  of  this 


success,  and  the  belief  that  they  could  se- 
cure the  accomplishment  of  the  work  cheap- 
er, which  they  in  fact  did.  The  defendant 
took  advantage  of  the  work  which  the  plain- 
tiff had  done,  and  completed  it.  The  de- 
fendant may  not  now  say,  "It  is  true  I  com- 
pleted the  work,  but  there  is  no  certainty 
yor<  could."  This  is  not  a  case  where  one 
party  agrees  to  sell  goods  for  another  for  a 
year,  to  receive  as  compensation  his  share 
of  the  profits  made;  but  it  is  a  case  where 
one  agrees  to  sell  a  certain  amount  of 
goods,  with  no  limit  as  to  time,  at  a  given 
price,  and  for  a  given  compensation,  and 
also  where  the  goods  have  been  sold  at  the 
same  price  within  the  agreed,  territory,  and 
within  the  time  contemplated.  It  has  been 
demonstrated,  not  only  that  the  work  could 
be,  but  that  it  has  been,  done.  It  is  a  fair 
inference  that  it  could  have  been  done  as 
well  by  the  plaintiff  as  by  the  defendant. 
One  element  of  damage  is  established  by 
the  contract,  and  the  evidence  from  the  de- 
fendant's own  books,  viz.  the  amount  agi-eed 
to  be  paid,  and  the  benefits  reaped  by  it. 
The  only  other  element  is  the  cost  of  doing- 
the  work,  which,  deducted  from  the  amount 
to  be  paid,  would  establish  the  profits.  The 
expense  of  what  plaintiff  did  is  some  evi- 
dence upon  which  to  base  a  judgment  of  the 
expense  of  doing  the  rest  of  the  work.  If 
tl'.at  be  the  only  evidence  as  to  the  cost,  and 
plaintiff  can  establish  by  experience  that  it 
is  more  difficifit  and  expensive  to  accom- 
plish the  first  part  of  the  work  than  the 
last  part,  defendant  cannot  complain  if  the 
jury  take  that  as  a  basis  to  determine  the 
cost.  On  the  contrary,  such  basis  would  be 
favorable  to  the  defendant;  and,  if  this 
were  the  only  basis,  we  think,  under  the 
circumstances  of  this  case,  it  was  sufficient 
to  justifj'  a  submission  of  the  case  to  the 
jmy.  He  who  breaks  his  couti-act  may  not 
deny  to  the  injured  party  the  fair  inferences 
to  be  drawn  from  the  part  performed.  In 
Bagley  v.  Smith,  10  N.  Y.  489,  one  partner 
sued  another  for  breach  of  the  partnership 
articles,  and  recovered  profits  lost  by  the 
unauthorized  dissolution.  The  court  says: 
"The  loss  of  profits  is  one  of  the  common 
grounds,  and  the  amount  of  profits  one  of 
the  common  measm-es,  of  the  damages  to  be 
given  upon  a  breach  of  contract.  It  is  very 
true  that  there  is  great  difficulty  in  making 
an  accurate  estimate  of  futm-e  profits.  This 
difficulty  is  inherent  in  the  natiu'e  of  the 
inquiry.  We  shall  not  lessen  it  by  shutting 
our  eyes  to  the  light  which  the  previous 
transactions  of  the  partnership  throw  upon 
it  Nor  are  we  the  more  inclined  to  refuse 
to  make  inquiry  by  reason  of  its  difiiculty, 
when  we  remember  that  it  is  the  misconduct 
of  the  defendant  which  has  rendered  it  nec- 
essary." A  review  of  the  vast  number  of 
authorities  upon  this  subject  would  involve 
a  critical  statement  of .  the  facts  of  each 
case,  and  the  writing  of  an  opinion  of  un- 
necessarv  length.     It  is  sufficient  to  sav  that 


156 


DIRECT  AND   CONSEQUENTIAL  DAMAGES— IN   CONTRACT. 


we  think  this  «ase  comes  within,  and  is 
rnled  by,  the  following  authorities:  Wake- 
ma  tj  V,  Manufacturing  Co.,  101  N>  Y.  205,  4 
N.  E,  2G4;  Treat  v.  Hiles  (Wis.)  50  N.  W. 
896;  Mueller  v.  Spring  Co.,  88  Mich.  390, 
50  N.  W.  319;    Oliver  y.  Perkins,  92  Mich. 


301,  52  N.  W.  609.  The  case  of  Wakeman 
V.  Mamifactiu'ing  Co.  is  similar  in  its  facts 
to  the  present  case,  and  many  of  the  author- 
ities are  there  collated  and  discussed.  Judg- 
ment reversed,  and  new  ti'ial  ordered.  The 
other  justices  concurred. 


y- 

-s 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


157 


h/ 


ALLISON   V.   CHANDLER. 

(11   Mich.   542.) 

Supreme  Court   of  Michigan.     Oct.    20,   18G3. 

Error  to  circuit  court,  Wayne  county. 

C.  I.  Walker,  for  phiiutiff  in  error.  Jerome 
&  Swift  and  A.  B.  Maynard,  for  defendant 
in  error. 

CHRISTIANCY,  J.     When  this  cause  was 
formerly  before  us  (Chandler  v.  Allison,  10 
Mich.   4G0),   one   of   the  questions    involved 
was    whether    Allison,    the    plaiutiCC,    was 
rightfully  in  possession  of  the  store  at  the 
time  the  trespass  was  committed,  or  wheth- 
er his  right  of  possession  was  dependent  up- 
on Chandler's  election  to  rebuild,  and  ceased 
Avheu  that  election  was  made;    and  one  of 
the  grounds  upon   which   the  judgment   in 
that  case  was  reversed  was  the  rejection  of 
evidence    tending    to    show    that    Allison's 
right  of  possession  Avas  thus  qualified.     But 
as  the  case  now  appears  before  us  upon  ex- 
ceptions taken  on  the  ueAV  trial,  the  finding 
of  the  jury,  w^hether  right  o«  wrong,— no  ex- 
ception having  been  taken  to  the  evidence 
or  the  charge  upon  this  point,— requires  us 
to  treat  this  question,  so  far  as  we  are  now 
to  consider  the  case,  as  settled  in  favor  of 
the  plaintiff;    and   the  defendant   must   be 
considered   as  a   trespasser,    entering   upon 
the   premises  and   tearing   down   the   store 
wliile  in  the  rightful  possession  of  the  plain- 
tiff, under  a  lease  for  a  term  which  would 
not  expire  till  the  1st  day  of  May  following. 
The  only  question  presented  by  the  pres- 
ent bill  of  exceptions,  and  not  already  dis- 
posed of  by  our  former  decision,  is  the  ques- 
tion of  damages;   and  in  this  action  of  ti-es- 
pass  (as  parties  are  under  no  necessity  of 
protecting   themselves    by   contract    against 
trespasses)  the  question  of  damages  is  to  be 
treated  in  all  respects  as  it  would  have  been 
had  the  trespass  been  committed  by  a  party 
between  whom  and  the  plaintiff  the  relation 
of  landlord  and  tenant  did  not  exist,  except 
so  far  as  the  good  faith  of  the  defendant, 
and   the    absence   of    malice    on    his    part, 
might  preclude  the  plaintiff  from  the  recov- 
ery  of   damages   of  a  punitory   and   exem- 
plary character,  beyond  the  amount  which 
Avould   compensate    the  actual    loss.     Upon 
this  point  (the  question  of  exemplary  dam- 
ages) we  think  the  court  below  was  right  in 
instructing   the   jury    that,    if  they    should 
find    the    defendant,    in   tearing    down    the 
store,    acted   in   good   faith,   and   under  an 
honest  belief  that  he  had  a  legal  right  to  do 
so,  then  tiiC  plaintiff  could  only  recover  his 
actual  damages.     This   qualification  of   the 
right  of  a  jury  to  give  punitory  or  exempla- 
ry  damages   in   actions  of  trespass   is,    we 
think,  in  accordance  with  the  principle  up- 
on which  such  damages  are  sometimes  al- 
lowed to  be  given.     But  whether  the  rulings 
of  the  court  upon  the  admission  of  evidence, 
and  in  the  charge  to  the  jury,  did  not  lay 


down  too  narrow  a  rule  for  the  estimation 
of  actual  damages,  is  the  main  question  for 
our  consideration. 

While  in  many  cases  the  rule  of  damages 
is  plain  and  easy  of  application,  there  are 
many  others  in  which,  from  the  nature  of 
the  subject-matter,  and  the  peculiar  circum- 
stances,   it    is    very    difficult— and    in    som.e 
cases  impossible— to  lay  down  any  definite, 
fixed  rule  of  law  by  which  the  damages  ac- 
tually  sustained   can   be   estimated   with   a 
reasonable    degree  of   accuracy,   or   even   a 
probable  approximation  to  justice;    and  the 
injury  must  be  left  -wholly,  or  in  great  part, 
unredressed,  or  the  question  must  be  left  to 
the  good  sense  of  the  jury  upon  all  the  facts 
and    circumstances    of   the   case,   aided    by 
such  advice  and  instructions  from  the  court 
as  the  peculiar  facts  and  circumstances  of 
the   case    may    seem    to    require.     But    the 
strong  inclination  of  the  courts  to  adminis- 
ter  legal    redress    upon    fixed    and    certain 
rules  has  sometimes  led  to  the  adoption  of 
such  rules  in  cases  to  which  they  could  not 
be   consistently    or   justly    applied.     Hence 
there  is,  perhaps,  no  branch  of  the  law  upon 
which  there  is  a  greater  conflict  of  judicial 
decisions,  and  none  in  which  so  many  mere- 
•  ly  arbitrary  rules  have  been  adopted.     We 
have  carefully  examined  all  the  cases  cited 
in  the  very  elaborate  briefs  of  the  respective 
counsel,  and  the  most  approved  elementary 
treatises  upon  the  subject,  and,  without  at- 
tempting here  to  compare  and  analyze  them 
(w'hich    would    require   a   treatise),   we   are 
compelled  to  say  that  the  line  of  mere  au- 
thority upon  questions  of  damages  like  that 
here   presented,    if   any    such    line    can    be 
traced  through  the  conflict  of  hostile  deci- 
sions, is  too  confused  and  tortuous  to  guide 
us  to  a  safe  or  satisfactoiy  result,  without 
resort   to  the  principles   of  natural   justice 
and  sound  policy  which  underlie  these  ques- 
tions, and  which  have  sometimes  been  over- 
looked, or  obscured  by  artificial  distinctions 
and  arbitrary  rules. 

The  principle  of  compensation  for  the  loss 
or  injury  sustained  is,  we  think,  that  which 
lies  at  the  basis  of  the  whole  question  of 
damages  in  most  actions  at  common  law, 
whether  of  contract  or  tort.  We  do  jiot 
here  speak  of  those  actions  in  which  puiii- 
tory  or  exemplary  damages  may  be  given, 
nor  of  those  whose  principal  object  is  the 
establishment  of  a  right,  where  merely  nom- 
inal damages  are  proper.  But,  with  these 
exceptions,  the  only  just  theory  of  an  action 
for  damages,  and  its  primai-y  object,  would 
seem  to  be  that  the  damages  to  be  recover- 
ed should  compensate  the  loss  or  injury  sus- 
tained. We  concur  entirely  with  the  court 
of  appeals  in  New  York  in  Grifiin  v.  Colver, 
10  N.  Y.  492,  in  repudiating  the  doctrine 
adopted  by  Mr.  Sedgwick  from  Domat 
(Sedgw.  Dam.  3,  37,  38,  etc.),  that  "the  law 
aims  not  at  the  satisfaction,  but  the  divi- 
sion of  the  loss."  Such,  it  is  true,  is  often 
the  result  of  an  action,  but  never  the  object 


158 


DIKECT  AND  CONSEQUENTIAL  DAMAGES— IX   TORT. 


of  the  law.  The  law  may,  and  often  does, 
fail  of  doing  complete  justice,  from  the  im- 
perfection of  its  means  of  ascertaining 
truth,  and  tracing  and  apportioning  effects 
to  their  various  causes;  but  it  is  not  liable 
to  the  reproach  of  doing  positive  injustice 
by  design.  Such  a  doctrine  would  tend  not 
only  to  make  the  law  itself  odious,  but  to 
■corrupt  its  administration,  by  fostering  a 
disregard  of  the  just  rights  of  parties.  In 
actions  upon  contract,  especially,  and  those 
nominally  in  tort,  but  substantially  upon 
contract,  courts  have  thought  it  •  generally 
safer,  upon  the  whole,  to  adopt  certain  def- 
inite lules  for  the  government  of  the  jury 
by  which  the  damages  could  be  estimated, 
at  the  risk  of  falling  somewhat  short  of  the 
actual  damages,  by  rejecting  such  as  could 
not  be  estimated  by  a  fixed  rule,  than  to 
leave  the  whole  matter  entirely  at  large 
with  the  jury,  "without  any  rule  to  govern 
their  discretion,  or  to  detect  or  correct  er- 
rors or  corruption  in  the  verdict.  In  such 
cases,  therefore,  there  has  been  a  strong  in- 
clination to  seize  upon  such  elements  of  cer- 
tainty as  the  case  might  happen  to  present, 
4ud  as  might  approximate  compensation, 
and  to  frame  thereon  rules  of  law  for  the 
measurement  of  damages,  though  it  might 
be  evident  that  further  damages  must  have 
been  suffered,  which  however,  could  only  be 
estimated  as  matter  of  opinion,  and  must 
therefore  be  excluded  under  the  rules  thus 
adopted.  And  it  is  not  to  be  denied  that  this 
course  of  decision  has  sometimes  been  ex- 
tended to  actions  purely  of  tort. 

But  whatever  plausibility  there  may  be  in 
the  theory  of  Mr.  Sedgwick  when  applied  to 
actions  upon  contract,— a  plausibility  which 
arises  from  mistaking  the  result  for  the  ob- 
ject,—the  injustice  of  such  a  principle,  when 
applied  to  cases  of  actual,  positive  tort,  like 
that  here  in  question,  would  be  so  gross  as 
to  shock  all  sense  of  justice. 

It  has  been  frequently  said  that  the  rule  of 
damages,  where  there  is  no  fraud,  willful  neg- 
ligence, malice,  oppression,  etc.,  is  the  same  in 
actions  of  tort  as  in  those  upon  contract.  But 
though  the  remark  is  doubtless  true  in  its  ap- 
plication to  those  cases  of  tort  where,  from  the 
nature  of  the  case,  elements  of  certainty  exist, 
by  which  substantial  compensation  may  be 
readily  estimated,  and  other  cases  which  are 
but  nominally  in  tort,  we  do  not  think  it  can 
be  accepted  as  a  principle  of  universal  applica- 
tion; nor,  in  our  opinion,  can  it  be  justly  ap- 
plied to  any  case  of  actual,  aggressive  tort, 
where,  from  the  nature  and  circumstances  of 
the  case  itself,  no  such  elements  of  certainty 
are  foimd  to  exist,  or  none  which  will  apply 
substantially  to  the  whole  case;  nor  to  any 
case  where  the  rule  applicable  to  breaches  of 
contract  would  exclude  a  material  portion  of 
the  damages  the  injured  party  may  have  suf- 
fered, though  the  amount  of  the  latter  may  not 
be  capable  of  accurate  calculation  by  any  fixed 
and  definite  rule. 
There    are    some    important    considerations 


which  tend  to  limit  damages  in  an  action  upon 
contract,  which  have  no  application  to  those 
purely  of  tort.  Contracts  are  made  only  by 
the  mutual  consent  of  the  respective  parties; 
and  each  party,  for  a  consideration,  thereby 
consents  that  the  other  shall  have  certain 
rights  as  against  him,  which  he  would  not  oth- 
erwise possess.  In  entering  into  the  contract 
the  parties  are  supposed  to  understand  its  le- 
gal effect,  and,  consequently,  the  limitations 
Avhich  the  law,  for  the  sake  of  certainty,  has 
fixed  for  the  recovery  of  damages  for  its 
broach.  If  not  satisfied  with  the  risk  which 
these  rules  impose,  the  parties  may  decline  to 
enter  into  the  contract,  or  may  fix  their  own 
rule  of  damages  when,  in  their  nature,  the 
amount  must  be  uncertain.  Hence,  when  suit 
is  brought  upon  such  contract,  and  it  is  found 
that  the  entu-e  damages  actuahy  sustained  can 
not  be  recovered  without  a  violation  of  such 
rules,  the  deficiency  is  a  loss,  the  risk  of  which 
the  party  voluntarily  assumed  on  entering  into 
the  contract,  for  the  chance  of  benefit  or  ad- 
vantage which  the  contract  would  have  gi^en 
him  in  case  of  performance.  His  position  is 
one  in  which  he  has  voluntarily  contributed  to 
place  himself,  and  in  which,  but  for  his  own 
consent,  he  could  not  have  been  placed  by  the 
wrongful  act  of  the  opposite  party  alone. 

Again,  in  the  majority  of  cases  upon  con- 
tract, there  is  little  ditiiculty,  from  the  nature 
©f  the  subject,  in  finding  a  riile  by  which  sub- 
stantial compensation  may  be  readily  estimat- 
ed; and  it  is  only  in  those  cases  where  this 
cannot  be  done,  and  where,  from  the  nature  of 
the  stipulation,  or  the  subject-matter,  the  ac- 
tual damages  resulting  from  a  breach,  are 
more  or  less  uncertain  in  their  nature,  or  diffi- 
cult to  be  shown  with  accuracy  by  the  evi- 
dence, under  any  definite  rule,  that  there  can 
be  any  great  failure  of  justice  by  adhering  to 
such  rule  as  will  most  nearly  approximate  the 
desired  result.  And  it  is  precisely  in  these 
classes  of  cases  that  the  parties  have  it  in  their 
power  to  protect  themselves  against  any  loss 
to  arise  from  such  uncertainty,  by  estimating 
their  own  damages  in  the  contract  itself,  and 
providing  for  themselves  the  rules  by  which 
the  amount  shaU  be  measured,  in  case  of  a 
breach;  and  if  they  neglect  this,  they  may  be 
presumed  to  have  assented  to  such  damages  as 
may  be  measured  by  the  rules  which  the  law, 
for  the  sake  of  certainty,  has  adopted. 

Again,  in  analogy  to  the  rule  that  contracts 
should  be  construed  as  understood  and  as- 
sented to  by  the  parties,— if  not  as  a  part  of 
that  rule,— damages  which  are  the  natural, 
and,  under  the  circumstances,  the  direct  and 
necessary  result  of  the  breach,  are  often  very 
properly  rejected,  because  they  cannot  fairly 
be  considered  as  having  been  within  the  con- 
templation of  the  respective  parties  at  the  tune 
of  entering  into  the  contract. 

None  of  these  several  considerations  have 
any  bearing  in  an  action  purely  of  tort.  The 
injured  party  has  consented  to  enter  into  no 
relation  with  the  wrongdoer  by  which  any  haz- 
ard of  loss  should  be  incurred;    nor  has  he  re- 


DIEECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


159 


<:eivcrl  any  consideration,  or  cliance  of  benefit 
or  advantage,  for  the  assumption  of  such  haz- 
ard; nor  has  the  wrongdoer  given  any  consid- 
eration, nor  assumed  an.-\-  rislv,  in  consequence 
of  any  act  or  consent  of  liis.  Tlie  injured  par- 
ty has  had  no  opportunity  to  protect  himself 
by  contract  against  any  uncertainty  in  the  es- 
timate of  damages;  no  act  of  his  has  contrib- 
uted to  the  injury;  he  has  yiehled  uotliing  by 
consent;  and,  least  of  all,  has  he  consented 
that  the  vi-rongdoer  might  take  or  injure  his 
property  or  deprive  him  of  his  rights,  for  such 
sum  as,  by  the  strict  rules  which  the  law  has 
established  for  the  measurement  of  damages 
in  actions  upon  contract,  he  may  be  able  to 
show,  with  certainty,  he  has  sustained  by  such 
taking  or  injury.  Especially  would  it  be  un- 
just to  presume  such  consent,  and  to  hold  him 
to  the  recovery  of  such  damages  only  as  may 
be  measured  with  certainty  by  fixed  and  defi- 
nite rules,  when  the  case  is  one  which,  from 
its  very  nature,  affords  no  elements  of  cer- 
tainty by  which  the  loss  he  has  actually  suf- 
fered can  be  shown  with  accuracy  by  any  evi- 
dence of  which  the  case  is  susceptible.  Is  he 
to  blame  because  the  case  happens  to  be  one 
of  this  character?  He  has  had  no  choice,  no 
selection.  The  nature  of  the  case  is  such  that 
the  wrongdoer  has  chosen  to  ma.ke  it,  and  upon 
every  principle  of  justice  he  is  the  party  who 
should  be  made  to  sustain  all  the  risk  of  loss 
which  may  arise  from  the  uncertainty  pertain- 
ing to  the  nature  of  the  case,  and  the  ditiiculty 
of  accurately  estimating  the  results  of  his  own 
wrongful  act.  Upon  what  principle  of  right 
can  courts  of  justice  assume,  not  simply  to 
divide  this  risk,  which  would  be  thus  far  un- 
just, but  to  relieve  the  wrongdoer  from  it  en- 
tirely, and  throw  the  whole  upon  the  innocent 
and  injured  party?  Must  not  such  a  course  of 
decision  tend  to  encoiu-age  trespasses,  and  op- 
erate as  an  inducement  for  parties  to  right 
themselves  by  violence,  in  cases  like  the  pres- 
ent? 
/  Since,  from  the  nature  of  the  case,  the  dam- 
/  ages  cannot  be  estimated  with  certainty,  and 
I  there  is  a  risk  of  giving  by  one  course  of  trial 
less,  and  by  the  other  more  than  a  fair  com- 
pensation,—to  say  nothing  of  justice,— does  not 
sound  policy  reciuire  that  the  risk  should  be 
thrown  upon  the  wrongdoer  instead  of  the  in- 
jured party?  However  this  question  may  be 
answered,  we  cannot  resist  the  conclusion  that 
it  is  better  to  run  a  slight  risk  of  giving  some- 
what more  than  actual  compensation,  than  to 
adopt  a  rule  which,  imder  the  circumstances  of 
the  case,  will,  in  all  reasonable  probability, 
preclude  the  injured  party  from  the  recovery 
of  a  large  proportion  of  the  damages  he  has 
actually  sustained  from  the  injury,  though  the 
amount  thus  excluded  cannot  be  estimated 
with  accuracy  by  a  fixed  and  certain  i-ule. 
'  Certainty  is  doubtless  veiy  deshable  in  esti- 
\  mating  damages  in  all  cases;  antl  where,  from 
the  nature  and  circumstances  of  the  case,  a 
rule  can  be  discovered  by  which  adequate  com- 
pensation can  be  accurately  measured,  the  iiile 
should  be  applied  in  actions  of  tort,  as  well  as 


in  those  upon  contract.  Such  is  quite  genor- 
ally  the  case  in  trespass  and  trover  for  the 
taking  or  conversion  of  personal  pi'operty,  if 
the  property  (as  it  generally  is)  be  such  as  can 
be  readily  obtained  in  the  market  and  has  a 
market  value.  But  shall  the  injured  party  in  i 
an  action  of  tort,  which  may  happen  to  furnish  | 
no  element  of  certainty,  be  allowed  to  recover  j 
no  damages  (or  merely  nominal)  because  he  ( 
cannot  show  the  exact  amount  with  certainty, 
though  he  is  ready  to  show,  to  the  satisfaction 
of  the  jury,  that  he  has  suffered  large  damages 
by  the  injury?  Certainty,  it  is  true,  would 
thus  be  attained;  but  it  would  be  the  certain- 
ty of  injustice.  And,  though  a  rule  of  cer- 
tainty may  be  found  which  will  measure  a  por- 
tion, and  only  a  portion,  of  the  damages,  and 
exclude  a  very  material  portion,  which  it  can 
be  rendered  morally  certain  the  injured  party 
has  sustained,  though  its  exact  amount  cannot 
be  measured  by  a  fixed  mle;  here  to  apply 
any  such  rule  to  the  whole  case,  is  to  misapply 
it;  and  so  far  as  it  excludes  all  damages 
which  cannot  be  measured  by  it  perpetrates 
positive  injustice  under  the  pretense  of  admin- 
istering justice. 

The  law  does  not  require  impossibilities, 
and  cannot,  therefore,  require  a  higher  de- 
gree of  certainty  than  the  nature  of  the 
case  admits.  And  we  can  see  no  good  reason 
for  requiring  any  higher  degree  of  certainty 
in  respect  to  the  amount  of  damages  than 
in  respect  to  any  other  branch  of  the  cause. 
Juries  are  allowed  to  act  upon  probable  and 
inferential,  as  well  as  direct  and  positive 
proof.  And  when,  from  the  nature  of  the  case, 
the  amount  of  the  damages  cannot  be  esti- 
mated with  certaint5%  or  only  a  part  of  them 
can  be  so  estimated,  we  can  see  no  objection 
to  placing  before  the  jury  all  the  facts  and 
circumstances  of  the  case,  having  any  tend- 
ency to  show  damages,  or  their  probable 
amount;  so  as  to  enable  them  to  make  the 
most  intelligible  and  probable  estimate  which 
the  nature  of  the  case  will  permit.  This 
should,  of  course,  be  done  with  such  insti'uc- 
tions  and  advice  from  the  court  as  the  cir- 
cumstances of  the  case  may  require,  and  as 
may  tend  to  prevent  the  allowance  of  such 
as  may  be  merely  possible,  or  too  remote  or 
fanciful  in  tlieir  character  to  be  safely  con- 
sidered as  the  result  of  the  injury. 

In  the  adoption  of  this  course  it  will  sel- 
dom happen  that  the  court,  hearing  the  evi- 
dence, will  not  thereby  possess  the  means  of 
forming  a  satisfactory  judgment  whether 
the  damages  are  unreasonable  or  exorbitant; 
and,  if  satisfied  they  are  so,  the  court  have 
always  the  power  to  set  aside  the  verdict 
and  grant  a  new  trial. 

The  justice  of  the  principles  we  have  en- 
deavored to  explain  will,  we  think,  be  suffi- 
ciently manifest  in  their  application  to  the 
present  case.  The  evidence  strongly  tended 
to  show  an  ouster  of  the  plaintiff  for  the 
balance  of  the  term  by  the  defendant's  act. 
This  term  was  the  property  of  the  plaintiff; 
and,  as  proprietor,  he  was  entitled  to  all  the 


160 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


benefits  he  could  derive  from  it.  He  could 
not  by  law  be  compelled  to  sell  it  for  such 
sum  as  it  might  be  worth  to  others;  and, 
when  tortiously  taken  from  him  against  his 
will,  he  cannot  justly  be  limited  to  such  sum 
— or  the  difference  between  the  rent  he  was 
paying  and  the  fair  rental  value  of  the  prem- 
ises—if the  premises  were  of  much  greater 
and  peculiar  value  to  him,  on  account  of  the 
business  he  had  established  in  the  store,  and 
the  resort  of  customers  to  that  particular 
place,  or  the  good  will  of  the  place,  in  his 
trade  or  business.  His  right  to  the  full  en- 
joyment of  the  use  of  the  premises,  in  any 
manner  not  forbidden  by  the  lease,  was  as 
clear  as  that  to  sell  or  dispose  of  it,  and 
was  as  much  his  property  as  the  term  itself, 
and  entitled  to  the  same  protection  from  the 
laws.  He  had  used  the  premises  as  a  jewel- 
ry store,  and  place  of  business  for  the  re- 
pairing of  watches,  making  gold  pens,  etc. 
This  business  must  be  broken  up  by  the 
ouster,  unless  the  plaintiff  could  obtain  an- 
other fit  place  for  it;  and  if  the  only  place 
he  could  obtain  was  less  fitted  and  less  valu- 
able to  him  for  that  purpose,  then  such  busi- 
ness would  be  injured  to  the  extent  of  this 
difference;  and  this  would  be  the  natural,  di- 
rect, and  immediate  consequence  of  the  injury. 
To  confine  the  plaintiff'  to  the  difference  be- 
tween the  rent  paid  and  the  fair  rental  value 
of  the  premises  to  others  for  the  balance  of 
the  term  would  be  but  a  mockery  of  justice. 
To  test  this,  suppose  the  plaintiff  is  actually 
paying  that  full  rental  value,  and  has  estab- 
lished a  business  upon  the  premises,  the  clear 
gains  or  profits  of  which  have  been  an  aver- 
age of  one  thousand  dollars  per  year,  and  he 
is  ousted  from  the  premises,  and  this  busi- 
ness entirely  broken  up  for  the  balance  of  the 
term,  can  he  be  allowed  to  recover  nothing  but 
six  cents  damages  for  his  loss?  To  ask  such 
a  question  is  to  answer  it.  The  rule  which 
would  confine  the  plaintiff"  to  the  difference 
between  such  rental  value  and  the  stipulated 
rent  can  rest  only  upon  the  assumption  that 
the  plaintiff  might  (as  in  case  of  personal 
property)  go  at  once  into  the  market  and  ob- 
tain another  building  equally  well  fitted  for 
the  business,  and  that  for  the  same  rent; 
and  to  justify  such  a  rule  of  damages  this 
assumption  must  be  taken  as  a  conclusive 
presumption  of  law.  However  such  a  pre- 
sumption might  be  likely  to  accord  with  the 
fact  in  the  city  of  New  York,  in  most  west- 
ern cities  and  towns  it  would  be  so  obviously 
contrary  to  the  common  experience  of  the 
facts  as  to  make  the  injustice  of  the  rule 
gross  and  palpable.  But  we  need  not  further 
discuss  this  point,  as  a  denial  of  any  such 
presumption  was  clearly  involved  in  our 
former  decision. 

The  plaintiff"  in  this  case  did  hire  another 
store,  "the  best  he  could  obtain,  but  not 
nearly  so  good  for  his  business";  "his  cus- 
tomers did  not  come  to  the  new  store,  and 
there  was  not  so  much  of  a  thoroughfare  by 
it,— not    one-quarter   of    the    travel;    and    he 


relied  much  upon  chance  custom,  especially 
in  the  watch-reparing  and  other  mechanical 
business."  This  injury  to  the  plaintift"'s  busi- 
ness was  as  clearly  a  part  of  his  damages  as 
the  loss  of  the  term  itself.  This  point,  also, 
was  decided  in  the  former  case,  and  we  there 
further  held  that  the  declaration  was  suffi- 
cient to  adroit  the  proof  of  this  species  of 
loss. 

Now,  if  the  plaintiff  is  to  be  allowed  to 
recover  for  this  injury  to  his  business,  it 
would  seem  to  follow,  as  a  necessary  con- 
sequence, that  the  value  of  that  business  be- 
fore the  injury,  as  well  as  after,  not  only 
might,  but  should  be  shown,  as  an  indis- 
pensable means  of  showing  the  amount  of 
loss  from  the  injury.  If  the  business  were  a 
losing  one  to  the  plaintiff"  before,  his  loss 
from  its  being  broken  up  or  diminished  (if 
anything)  would  certainly  be  less  than  if  it 
were  a  profitable  one.  It  is  not  the  amount 
of  business  done,  but  the  gain  or  profit  aris- 
ing from  it,  which  constitutes  its  value. 

But  it  is  insisted  that  loss  of  profits  con- 
stitutes no  proper  ground  or  element  of  dam- 
ages. If  there  be  any  such  rule  of  law  it  is 
certainly  not  a  universal,  and  can  hardly  be 
called  a  general,  rule.  Decisions,  it  is  true, 
may  be  found  which  seem  to  take  it  for 
granted  that  the  rule  is  universal.  But  there 
are  numerous  cases,  even  for  breach  of  con- 
tract, in  which  profits  have  been  properly 
held  to  constitute  not  only  an  element,  but 
a  measure  (and  sometimes  the  only  measure), 
of  damages,  as  in  Masterton  v.  Mayor,  7  Hill, 
61;  Railroad  Co.  v.  Howard,  13  How.  344. 
And  in  actions  for  breach  of  contract  in  not 
delivering  goods  (as  wheat  or  other  articles) 
having  a  marketable  value,  as  well  as  in 
most  actions  of  trespass  or  trover  for  the 
taking  or  conversion  of  such  property,— where- 
ever  the  difference  between  the  contract 
price,  or  the  market  value  at  the  time  of 
taking  or  conversion,  and  the  higher  market 
value  at  any  subsequent  period,  is  held  to 
constitute  the  damages,— in  all  such  cases 
this  difference  of  price  is  but  another  name 
for  profits,  and  is  yet  very  properly  held  to 
be  a  measure  of  damages.  There  is  nothing, 
therefore,  in  the  nature  of  profits,  as  such, 
which  prevents  their  allowance  as  damages. 
But  in  many,  and  perhaps  the  majority,  of 
cases  upon  contract  in  which  the  question 
has  arisen,  they  have  been  held  to  be  too 
remote  or  dependent  upon  too  many  contin- 
gencies to  be  calculated  with  reasonable  cer- 
tainty, or  to  have  been  within  the  contempla- 
tion of  the  parties  at  the  time  of  entering  in- 
to the  contract. 

But  there  are  also  cases  for  breach  of  con- 
tract where,  though  the  profits  were  in  their 
nature  somewhat  uncertain  and  contingent 
(and  in  most  of  them  quite  as  much  so  as 
in  the  present  case),  they  were  yet  held  to 
constitute,  not  strictly  a  measure,  but  an 
element  of  damages  proper  for  the  considera- 
tion of  a  jm-y  to  enable  them  to  form  a  judg- 
ment or  probable  estimate  of  the  damages; 


DIRECT   AND  CONSEQUENTIAL  DAMAGE-^— IN   TOUT. 


161 


as   ill   -McXfill  v.    Keid.  9   Biiig.   <iS;    Baj,'lo.v  ' 
V.    .Smith,  lU  ,N.   Y.  48l.>;    Gale  v.   Leckie,  2   j 
Stai-kie.  107;    Ward  v.   Smith,  11  Price,  19; 
Dri.s?gs  V.   Dwight,   17   Weml.   71.     And   see 
I'assenger  v.   Thorbiuu,    35  Barb.   17.     And 
iu  AVators  v.  Towers,  20   Eng.   Law  &   Eq. 
410,  the  jury  were  allowed  to  take  into  coii- 
sideratioii  the  prolits  which  might  have  beeu 
made  upon  a  collateral  contract,  though  void 
by    tiie  statute  of  frauds   (aud  see   McNeill 
V.  Itoid,  sujtra),  while  by  the  American  au- 
thorities prolits  of  this  description  have  been 
almost    uniformly    rejected.     But    whatever 
may  be  the  rule  iu  actions   upon   contract, 
we  think  a  more  liberal  rule  iu   regard  to 
damages   for  profits   lost   shoidd   prevail    iu 
actions  purely  of  tort  (excepting  perhaps  the 
action  of  trover).     Not  that  they  should  be 
allowed  iu  all  cases  without  distinction,  for 
there  are  some  cases  where  they  might,  in 
their  nature,  be  too  entirely  remote,  specula- 
tive, or  contingent  to  form  any  reliable  basis 
for   a   probable   opinion.     And   perhaps   the 
decisions  which  have  excluded  the  anticipat- 
ed profits  of  a  voyage  broken  up  by  illegal 
capture  or  collisiou  may  be  properly  justified 
upon  this  ground.     Upon  this,  however,  we 
express  no  opinion.     But  generally,  in  an  ac- 
tion purely   of    tort,    where  the  amount   of 
profits  lost  by  the  injm-y  can  be  shoAvu.  with 
reasonable  certainty,  we  think  they  are  not 
only  admissible  iu  evidence,  but  that  they 
constitute,  thus  far,  a  safe  measure  of  dam- 
ages;   as  w^hen  they  are  but  auotlier  name 
for  the  use  of  a  mill  (for  example),  as  iu 
White  V.  Moseley,  S  Pick.  35G;   or  for  the  use 
of  any   other  property   where  the  value    or 
profit  of  the  use  cau  be  made  to  appear  with 
reasonable   certainty    by    the    light   of   past 
experience,   as   might   often   be   done   where 
such    profits    had    been    for   a    considerable 
time  uniform  at  the  same  season  of  the  year, 
aud  there  are  no  circumstances  tending  to 
show  a  probable  diminution,  had  the  injury 
not  occurred.     And  possibly  the  same  view, 
subject  to  the  like  qualifications,  might  have 
beeu  taken  of  the  profits  of  the  plaintiff's 
1)usiuess   had    it    been    confined    to   the    me- 
chanical trade  of  repairing  watches  and  mak- 
ing gold  pens,  particularly  if  done  purely  as 
a  cash   business.     But   this   business   seems 
to   have   been  carried  on   with   that   of   the 
sale  of  jewelry.     He  kept  a  jewelry  store, 
and  the  profits  of  so  much  of  his  business  as 
may    be    regarded    as    mercantile    business 
are  dependent  upon  many   more  contingen- 
cies, and  therefore  more  uncertain,  especially 
if  sales  are  made  upon  credit.     Past  profits, 
therefore,  could  uot  safely  be  takeu  as  the 
exact  meastu-e  of  future  profits;    but  all  the 
various  contingencies  by  which  such  profits 
M'ould  probably  be  affected  should  be  taken 
into  cousideiation  by  the  jury,  aud  allowed 
sitch  weight  as  they,  in  the  exercise  of  good 
sense    and    sound    discretion,    should    think 
them  entitled  to.     Past  profits  iu  such  oases, 
wliere  the  business  has  beeu  continued   for 
some  length  of  time,  would  constitute  a  very 
LAW  DAM. 2d  K.I.— 11 


material  aid  to  the  jury  in  arriving  at  a  fair 
l)robable  estimate  of  the  futtu-e  profits,  had 
the  business  still  continued  without  inter- 
ruption. 

Accordingly  such  past  profits  have  been 
allowed  for  this  purpose,  both  in  actions  ex 
contiactu  aud  ex  delicto,  though  more  fre- 
quently in  the  latter,  where  from  the  nature 
of  the  case  no  element  of  greater  certainty 
appeared,  and  the  acttml  damages  must  be 
more  or  less  a  matter  of  opinion;  and  where, 
as  in  the  present  casej  though  somewhat  in- 
conclusive, it  was  the  best  evidence  the 
nature  of  the  case  admitted.  See  Wilkes  V. 
ITuugenord,  2  Bing.  N.  C.  281;  Ingram  v. 
Lawson,  G  Bing.  N.  C.  212;  Lacour  v.  Mayor, 
4  Duer,  406;  and  the  following  in  actions 
upon  contract:  Driggs  v.  Dwight,  17  Wend. 
71;    Bagley  v.  Smith,  10  N.  Y.  489. 

But  it  is  urged  by  the  counsel  for  the  de- 
fendant that  damages  for  the  loss  of  profits 
ought  not  to  be  allowed,  because  they  could 
not  have  beeu  within  the  contemplation  of 
the  defendant.  Whether,  as  matter  of  fact, 
this  is  likely  to  have  been  true,  Ave  do  not 
deem  it  important  to  iuquire.  It  is  wholly 
immaterial  Avhether  the  defendant,  in  com- 
mitting the  trespass,  actually  contemplated 
this  or  any  other  species  of  damage  to  tlic 
plaintiff.  This  is  a  consideration  which  is 
confined  entirely  to  cases  of  contracts,  where 
the  question  is,  what  was  the  extent  of 
obligation,  in  this  respect,  which  both  parties 
uudei-stood  to  be  created  by  the  contract? 
But  where  a  party  commits  a  trespass  he 
must  be  held  to  contemplate  all  the  damages 
Avhich  may  legitimately  follow  from  his  il- 
legal act.  And  where  a  party,  though  acting 
in  good  faith,  yet  knowing  his  right  to  be 
disputed  by  a  party  in  poasession,  instead  of 
resorting  to  a  judicial  trial  of  his  right,  as- 
sumes to  take  the  Ip.av  into  his  own  hands, 
and  by  violence  to  seize  the  property  or  right 
j  iu  dispute,  he  must  be  held  thereby  to  as- 
sume, on  the  one  hand,  the  risk  of  being 
able  to  show,  when  the  other  party  brings 
him  into  court,  that  the  property  or  right 
Avas  his,  or  that  his  act  Avas  legal;  or,  on 
the  other,  of  paying  all  the  damages  the 
injtired  party  may  have  stift'ered  from  the 
injury;  and,  if  those  damages  are  in  their 
nature  uncertain,  then  such  as,  from  all  the 
circumstances,  or  the  best  light  the  nature  of 
the  case  affords,  a  jiuy,  in  the  exercise  of 
good  sense  and  souud  discretion,  may  find  to 
be  a  full  compensation. 

We  are  therefore  eutirely  satisfied  that  all 
the  questions  put  to  the  witness  Allison 
touched  the  nature,  extent,  and  profits  of  the 
business  before  aud  after  the  trespass  Avere 
competent,  and  improperly  overruled;  aud 
that  the  charge  of  the  court,  so  far  as  it  ex- 
cluded all  consideration  of  the  good  Avill  of 
the  place,  its  peculiar  value  to  tlie  plaintiff, 
and  his  probable  profits,  was  erroneous. 

The  judgment  must  be  reversed,  Avitli  costs 
to  the  plaintiff,  and  a  uoav  trial  granted. 

The  other  justices  concurred. 


162 


DIRECT  AND  CONSEQUENTIAL   DAMAGES— IN   TORT. 


HILL  V.  WINSOR. 

(118  Mass.  251.) 

Supreme   Judicial    Court   of   Massachusetts. 
Suffolk.     Sept.  4,   1875. 

At  the  trial  of  an  action  of  tort  for  per- 
sonal injuries  sustained  in  consequence  of 
the  defendants'  steam-tug  striking  the  fender 
of  a  bridge  on  which  the  plaintiff  was  at 
work,  the  plaintiff's  evidence  tended  to  show 
that  the  fender,  which  was  built  to  protect 
the  bridge,  consisted  of  piles  driven  perpen- 
dicularly into  the  bed  of  a  stream  about 
twelve  feet  apart,  with  other  piles  driven  at 
an  angle  to  each  of  these,  one  of  which  was 
fastened  to  the  top  of  each  perpendicular 
pile,  with  a  cap  on  top  extending  along  the 
whole  row  of  piles;  that  the  plaintiff  was  at 
work  standing  on  a  phmk  nailed  to  the  piles, 
and,  in  order  to  fit  an  inclined  pile  to  the 
perpendicular  one  i.nd  tlie  cap,  he  had  put  in 
a  brace  about  a  foot  long  to  keep  the  in- 
clined pile  and  the  upright  one  apart  while 
he  was  at  work;  that,  while  so  at  work,  he 
saw  the  tug  coming  towards  the  fender,  and 
tried  to  get  on  the  ca]j,  when  the  tug  struck 
the  fender  some  distance  from  him,  and  the 
jar  caused  the  brace  between  the  piles  to 
fall  out,  the  piles  came  together,  he  was 
caught  between  them,  and  severely  injured. 
The  defendants'  evidence  tended  to  show  that 
the  plaintiff  was  not  seen  by  those  on  the 
tug  until  after  the  accident,  though  otlier 
men  at  work  on  the  fender  were  seen;  that 
the  tug  was  drifted  against  the  fender  by 
the  tide,  and  then  started  up;  that  it  was 
the  only  way  it  could  get  away  from  the 
fender;  and  that  it  Avas  usual  for  vessels. 
when  so  caught  by  the  tide,  so  to  do. 

E.  H.  Derby  and  W.  C.  Williamson,  for 
plaintiff.  O.  W.  Holmes,  Jr.,  and  W.  A. 
Mimroe,  for  defendants. 

COLT,  J.  In  acticns  of  this  description, 
the  questions  whether  the  plaintiff  was  him- 
self in  the  exercise  of  due  care,  and  the  de- 
fendants' act  negligent,  whether  the  injury 
suffered  was  due  to  that  act,  as  well  as  the 
amount  of  damage  to  the  plaintiff,  are,  as  a 
general  rule,  practif^al  questions  of  fact  to  be 
settled  by  the  knowledge  and  experience  of 
the  jury.  The  defendants'  liability  depends 
upon  circumstances  which,  as  the  cases  arise, 
are  of  infinite  variety  and  combination.  If 
there  is  any  evidence  upon  ^vhicli  the  jury 
may  legally  found  a  verdict  for  the  plaintiff, 
that  verdict  cannot  ))e  disturbed  on  excep- 
tions as  matter  of  law,  unless  there  has  been 
some  error  in  the  conduct  of  the  trial,  or  the 
judge  has  failed  to  state  the  true  test  of  lia- 
bility in  his  instructions  as  applied  to  tlie 
facts  disclosed. 

Under  the  instructions  given  in  the  present 
case,  the  jury  must  have  found  that  the  in- 
jury of  the  plaintiff"  was  caused  by  the  neg- 
lect or  want  of  ordinary  care  on  the  part  of 
those  who,  as  agenls  and  servants  of  the 
defendants,  had  cha'ge  of  tlie  tug-boat;  and 


that  this  negligence  consisted  in  not  using 
such  care  in  its  navigation  and  management 
as  persons  of  ordinary  i)rudence  would  use 
under  circumstances  of  like  exposure  and  dan- 
ger. They  must  have  also  found  that  the 
plaintiff  was  himself  in  the  exercise  of  due 
care  in  attempting  to  escape  the  peril  to  which 
he  was  exposed  by  the  defendants'  conduct, 
and  that  his  injury  was  therefore  due  solely 
to  the  defendants'  negligence.  The  evidence 
reported  justifies  these  findings.  The  struc- 
ture upon  which  the  plaintiff'  was  at  work 
was  imperfect  and  out  of  repair.  Its  condi- 
tion at  the  time,  the  plaintiff's  exposed  posi- 
tion upon  it,  and  the  knowledge  of  that  ex- 
posure which  those  in  charge  of  the  boat  had, 
or  in  the  exercise  of  due  care  might  have 
had,  were  elements  affecting  the  question  of 
the  defendants'  negligence  to  which  the  at- 
tention of  the  jury  was  especially  called.  It 
cannot  be  said,  as  matter  of  law,  that  the 
jury  might  not  properly  find  it  obviously  prob- 
able that  injury  in  some  form  wouM  be  caus- 
ed to  those  who  were  at  work  on  the  fender 
by  the  act  of  the  defendants  in  running 
against  it.  This  constitutes  negligence,  and 
it  is  not  necessary  that  injury  in  the  precise 
form  in  which  it  in  fact  resulted  should  have 
been  foreseen.  It  is  enough  that  it  now  ap- 
pears to  have  been  a  natural  and  probable 
consequence.  Lane  v.  Atlantic  Works,  111 
Mass.  136,  and  cases  cited. 

A  majority  of  the  court  are  of  opinion  that 
there  was  no  error  in  refusing  to  give  the 
specific  instructions  requested;  and  that,  so 
far  as  they  contain  correct  propositions  of  law 
applicable  to  the  facts  presented,  they  ap- 
pear to  have  been  given.  The  court  Avas  not 
boimd  to  adopt  the  precise  language  of  the 
re<iuest.  As  to  the  second  and  sixth,  it  is 
enough  to  say  that  there  is  no  rule  of  law 
Avhich  exempts  one  from  the  consequences  of 
his  negligent  conduct  upon  proof  that  he 
proceeded  in  the  usual  manner  and  took  tin- 
usual  course  pursued  by  parties  similarly  situ- 
ated, although  he  was  without  notice  tliat  li  > 
coidd  not  safely  do  so.  The  defendants  can- 
not protect  themselves  by  proving  the  care- 
less practices  of  others,  and  the  circimistances 
here  were  such  as  to  justify  the  inference 
that  the  defendants  were  bound  to  take  notice 
of  the  danger. 

The  third  and  fourth  requests  improperly 
made  the  plaintift"'s  right  to  recover  wholly 
dependent  on  the  fact  that  notice  to  the  de- 
fendants had  been  given  by  the  parties  in 
charge  of  the  work,  that  the  fender  was  not 
in  proper  condition  for  use,  although  there 
Avas  evidence  that  the  men  on  the  tug  saw 
the  Avorkmen  on  the  bridge  and  the  danger  to 
Avhich  they  were  exposed  in  time  to  have  pre- 
vented the  injury. 

The  seventh  and  eighth  are  in  effect  re- 
(piests  for  instructions  that  the  defendants 
Avere  not  liable  if  they  used  ordinary  care,  and 
this  rule  was  given  to  the  jury,  as  we  have 
seen. 
Exceptions  overruled. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


103 


SCHUMAKER  t.  ST.  PAUL  &  D.  R.  CO. 

(48  N.  W.  559,  46  Minn.  39.) 

Supreme   Court   of   Minnesota.    April  8,   1891. 

Appeal    from     district     court,   Ramsej' 
county;  Kklt.y,  .Judjije. 

Win.  H.  Bliss,  for  appellant.     Em  in  & 
WrlUiigtou,  for  respondent. 

COLLINS,  J.     To   plaintiff's  complaint 
herein   the   defendant    corjjoration    inter- 
po.sed  a  demurrer,  upon  the  Ki'ound   that 
it  failed  to  state  facts  sufficient  to   consti- 
tute a  cause  of  action.     Ui)on   the  arp;u- 
ment  of  this  appeal   defendant  contended 
that  its  nealif^ence  in  the  premises  was  in- 
sufficiently pleaded;  that  the  injury  com- 
plained of,  provided  the  same  could  besaid 
to  have  been  the  result  of  defendant's  act, 
was  n(jt  proximate,  but  was  too  remote  a 
conse(iuence  to   be  chargeable  to  it;  and, 
further,  that  from   the  alleviations  of  the 
complaint  it  was  manifest   tliat   plaintiff 
himself  was  guilty  of  contributory  negli- 
gence.   Vei'y  little  need  besaid   on  any  of 
these  points, for  none  arewell  taken.     The 
complaint  contains  much  that  is  superflu- 
ous, but  in  respect  to  negligence  it  avers  the 
defendant's  duty  to  have   been  to  furnish 
transportation  to  plaintiff,  a  car-repairer 
in  its  employ,  from   the  wrecked  caboose, 
which   he  had  been  sent  out  to  repair   by 
the  foreman,  back   to   St.  Paul,  when   he 
had    completed    his   work,   and     that    it 
wrongfully,   unlawfully,   and    negligently 
failed   and  omitted  so  to  do,  or  to  furnish 
plaintiff  with  transportation  to  any  other 
place   where  shelter  or  food   could   be  ob- 
tained, and  that  by  reason  of  such  negligent 
failure   ana   omission   plaintiff   was  com 
pelled   to  and  did  walk   to   the  village  of 
White  Bear,  a  distance  of  nine  miles, in  the 
night-time,  in  extremely  cold  and   danaer- 
ous  weather,  that  being  the  nearest  point 
at  which    the  necessary   shelter  and  food 
could  be  had  ;  that  jjlacing  reliance  upon  de- 
fendant's i)erformance  of  its  duty  towards 
plaintiff  when  he  had  completed  his  work, 
by  furnishing  transportation    back  to  St. 
Paul  from  the  place  on  its   line  of  road 
where  he  had  been  taken  to  repair  the  ca- 
boose,  plaintiff  was    wholly   unprepared 
with    means    for    properly   sheltering  or 
clothing    himself.      It   was   also    averred 
that  the  facts  and  circumstances  with  ref- 
erence to  the  location  of  the  caboose,  the 
inclemency  of  the  weather,  the  distance  to 
shelter  orfood,  and  that   plaintiff,  by  rea- 
son of  his  reliance  upon  being  transported 
back   to  St.  Paul  when    through  with   his 
work,   had     not    provided     himself   with 
proper  clothing  for  such    weather,   were 
then  well  known   to   the  defendant.    The 
negligence  of   the  defendant  might  have 
been   specified  with  greater  certainty,  but 
from  an  inspection   of  the   pleading  it   ap- 
pears that  defendant  is  charged  with  hav- 
ing unnecessarily  and  unreasonably  placed 
its  servant,  the  piaintiff.in  serious  danger, 
from  which   injury   resulted,  by  carelessly 
and   negligently    omitting   to     perform    a 
duty     immediately     connected     with     his 
work,  on  the  i)erformance  <>f  which  he  had 
a  right  to  and  did  rely.     With  full   knowl- 
edge of  the  situation   as   to  weather   and 
the  locality, consequently  of  the  danger  to 
be   apprehended,   it   neglected    and    aban- 


doned the  plaintiff  under  circumstances 
which  he  alleges  resulted  in  personal  in- 
jury to  him.  It  had  no  more  right  to  un- 
necessarily and  unreasonably  leave  him  in 
a  dangerous  place,  to  expose  him  to  an 
unnecessary  and  unreasonable  risk  from 
the  elements,  by  failing  to  furnish  trans- 
portation from  the  place  where  he  had 
been  put  at  work,  when  that  work  was 
comt»leted,  it  being  its  duty  so  to  do,  ac- 
cording to  the  complaint,  than  it  had  to 
unnecessarily  and  unreasonably  expose 
him  to  risks  and  dangers  while  he  was  at 
work, — such  risks  and  dangers  as  were 
discoverable  by  the  use  of  ordinary  j)re- 
caution  and  diligence.  The  defendant 
should  have  been  reasonably  diligent,  and 
could  not,  without  incurring  liability,  de- 
sert the  plaintiff  in  the  manner  and  under 
the  circumstances  set  forth  in  the  com- 
plaint. 

The  important  question  in  this  case, 
however,  is  whether,  from  the  complaint, 
it  appears  that  defendant  is  liable  for  the 
injuries  which  resulted  from  plaintiff's  ef- 
forts to  obtain  shelter  and  food  on  the 
occasion  referred  to;  the  former,  as  be- 
fore stated,  arguing  that,  as  alleged,  they 
are  too  remote,  and  are  not  the  proxi- 
mate results  of  its  act.  It  is  averred  that, 
by  reason  of  the  unavoidable  exposure  of 
tiie  plaintiff,  he  was  made  sick,  contracted 
rheumtitism,  has  ever  since  suffered  great 
pain  and  agony,  and  has  been  permanent- 
ly injured.  It  must  not  be  forgotten  that 
t\\ei>ravnmenol  the  action  is  the  negligence 
and  carelessness  of  the  defendant  in  leaving 
plaintiff  at  a  place  where  hecould  not  pro- 
cure either  shelter  or  food.  It  is  an  action 
in  tort,  and  not  for  a  breach  of  contract. 
It  is  the  negligence  of  the  defendant  which 
is  complained  of,  and  not  the  breach  of  a 
contrat^t  to  return  the  plaintiff  to  St.  Paul 
when  he  had  performed  his  labor.  It  was, 
of  course,  essential  that  the  plaintiff's  re- 
lation with  the  defendant  be  made  to 
appear,  for,  unless  he  was  a  servant  to 
whom  the  defendant  owed  a  duty,  there 
could  arise  no  liability  by  reason  of  its  neg- 
lect to  perform  that  duty.  The  relation 
of  master  and  servant  first  having  been 
shown  to  exist,  the  law  fixes  the  duty  of 
theformertowards  the  latter,  and  a  viola- 
tion of  this  duty  is  a  wrong,  not  a  breach 
of  the  contract.  This,  then, is  an  action  in 
which  the  wrong-doer  is  liable  for  the  nat- 
ural and  probable  consequences  of  its  neg- 
ligent act  or  omission;  the  general  rules 
which  limit  the  damages  in  actions  of 
of  tort  being,  in  many  respects,  different 
from  those  in  actions  on  contracts.  The 
injury  must  be  the  direct  result  of  the  mis- 
conduct attributed,  and  the  general  rule 
in  respect  to  damages  is  that  wlujever 
commits  a  trespass  or  other  wrongful  act 
is  liable  for  all  the  direct  injury  resulting 
therefrom,  although  such  resulting  injury 
could  not  have  been  contemplated  as  a 
probable  result  of  tine  act  done.  1  Sedg. 
Dam.  130,  note,  and  cases  cited  ;  Clifford  v. 
Kailroad  Co.,  !»  Colo.  333,  12  Pac.  R^^p.  219, 
a  case  much  like  this.  He  who  con.n)its 
a  trespass  must  be  held  to  conteini)late 
all  the  damages  which  may  leiiiiimately 
flow  from  his  illegal  act,  whether  he 
may  have  foreseen  them  or  not;  and, 
so  far  as  it  is  plainly  traceable,  he  must 
make      compensation     for     the     wrong. 


164 


DUiECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


Tlie  damages  cannot  be  ccjnsidered  too 
remote  if,  acc-ording  to  the  usual  ex- 
perience of  mankind,  injurious  results 
ought  to  have  been  apprehended.  It  is  not 
necessary  that  the  injury  in  the  precise 
form  in  "which  it,  in  fact,  resulted,  should 
have  been  foreseen.  It  is  enough  that  it 
uow  appears  to  liave  been  a  natural  and 
probable  consequence.  Hill  v.  Winsor,  118 
Ma.ss.  251.  The  question  is  whether  the 
negligent  act  complained  of— leaving;  the 
plaintiff  in  the  open  country  in  the  night- 
time, in  extremely  cold  and  dangerous 
weather,  a  long  distance  from  slielter  or 
food— was  the  direct  cause  of  the  injuries 
mentioned  in  the  comi)laint,  or  whether  it 
was  a  remote  cause,  for  which  an  action 
will  not  lie,  and  it  must  be  taken  for  grant- 
ed that  the  walk  of  nine  miles  and  incident 
exposure  brought  about  the  alleged  sick- 
ness, pain,  and  disability.  There  was  no 
intervening  independent  cause  of  the  in- 
jury, for  all  of  the  acts  done  by  the  plain- 
tiff^ nis  effort  to  seek  protection  from  the 
inclement  and  dangerous  weather,  were 
legitimate,  and  compelled  by  defendant's 
failure  to  reconvey  him  to  the  city.  Had 
he  remained  at  the  caboose,  and  lost  his 
hands,  or  his  feet,  or  perhaps  his  life,  by 
freezing,  no  doubt  could  exist  of  the  de- 
fendant's liability.  It  must  not  be  permit- 
ted to  escape  the  consequences  of  its 
wrong  because  the  injuries  were  received 
in  an  eftort  to  avoid  the  threatened  dan- 
ger, or  because  they  differ  in  form  or  seri- 
ousness from  tho.se  which  might  have  re- 
sulted had  the  plnintiff  made  no  such  ef- 
fort. An  efficient,  adequate  cause  being 
found  for  th3  injuries  received  by  plaintiff, 
ft  must  be  considered  as  the  true  cause, 
unless  another,  not  incident  to  it.  but  in- 
dependent of  it,  is  shown  to  have  inter- 
vened between  it  and  theresult.  Thisisthe 
substance  of  very  clear  statements  of  the 
law   found   in   Kelloo-o-  v.  Railway  Co.,  2(; 


Wis.  223,  and  in  Railway  Co.  v.  Kelk)c;g,  U-l 
U.  S.  4()9.  And  upon  the  point  now  under 
considei-ation  Ave  fail  to  distinguish  be- 
tween the  case  at  bar  and  Brown  v.  Rail- 
way Co.,  .54  Wis.  342, 11  N.  W.  Rep.  3.56, 911,— 
an  action  brought  to  recover  for  like  dam- 
ages said  to  have  been  caused  by  directing 
passengers  to  alight  from  a  train  at  a 
place  about  three  miles  distant  from  their 
destination.  At  all  events,  the  question 
as  to  what  was  the  proximate  cause  of  a 
plaintiff's  injuries  is  usuady  one  to  be  de- 
termined bj-  a  jury.  As  Avas  said  in  Rail- 
way Co.  V,  Kelhjgg,  supra,  the  true  i-uie 
is  that  what  is  tlie  proximate  cause  of  an 
injury  is  ordinarily  one  for  a  jury.  It  is 
not  a  question  of  science  or  legal  knowl- 
edge. It  is  to  be  determined  as  a  fact,  in 
view  of  the  circumstances  attending  it. 

Finally,  the  defendant  insists  that  plain- 
tiff was  guilty  of  contributory  negligence, 
because,  from  the  complaint,  it  appears 
that  he  was  wholly  unprepared  with 
clothing  sufficient  for  the  occasion,  and 
because  he  left  the  slielter  of  the  caboose 
when  he  undertook  his  journey  upon  foot 
to  the  village  of  White  Bear.  The  plain- 
tiff, undoulUedly,  went  prepared  with  such 
clothing  as  he  would  ordinarily  and  nat- 
urally need  for  the  occasion,  had  the  de- 
fendant performed  its  alleged  duty,  and 
this  was  all  that  was  recpiired  of  him. 
He  was  not  obliged  to  anticipate  the  de- 
fendant's negligence  or  omission,  and  pre- 
pare for  it,  nor  does  it  follow  that,  be- 
cause there  was  a  caboose  at  the  place 
where  he  worked,  it  afforded  him  ade- 
quate and  proper  shelter  for  the  night. 
If  this  was  the  fact,  it  can  quite  properly 
be  shown  as  a  defense  upon  the  trial  of 
the  case.  But  the  complaint  negatives 
Buch  a  conclusion.    Order  affirmed. 

MITCHELL,  J.,  did  not  participate  in 
the  making  and  filing  of  this  decision. 


DIRECT  AND  COXSKQUENTIAL  DAMAGES— IN  TORT. 


165 


VOSBURG  V.  PUTNEY. 

(50  N.  W.  403,  80  AVis.  ".23.) 

Snproino   Court   of  Wisconsin.    Nov.    17,   1891, 

Appeal  from  circuit  court,  Waulcesha 
county:  A.  Scott  Si.oan,  Judge.  Re- 
versefl. 

Action  by  Andrew  Vosburg  against 
deorge  Putney  for  personal  injuries. 
From  a  judsnient  for  plaintiff,  defendant 
appeals. 

The  other  facts  fully  appear  in  the  fol- 
lowing statement  by  LYON,  J.: 

The  action  was  brought  to  recover  dam- 
ages for  an  assault  and  battery,  alleged  to 
have  been  committed  by  the  defendant  up- 
on the  plaintiff  on  February  liO,  ISb^O.     The 
answer  is  a  general  denial.     .\     thedateof 
the    alleged   assault  the   plaintiff    was   a 
little  more  than  14  years  of   age,   and    the 
defendant   a  little   less   than  12  years   of 
age.    The  injury  complained  of  was  caused 
by  a  kick   infiicted   by  defendant  upon  the 
leg  of  the  plaintiff,  a  little  below  the  knee. 
Tlie  transaction  occurred  in  a  school-room 
in  Waukesha,   during  school   hours,  both 
parties     being    pupils    in    the  school.     A 
former  trial  of  the  cause   resulted  in  a  ver- 
dict and   judgment    for    the    plaintiff  for 
.$2,S00.    The  defendant  appealed  from  such 
judgment  to  tiiis  court,  and  the  same  was 
reversed  for  eiror,  and  a  new  trial  award- 
ed.   7S  Wis.  M,  47  N.  W.  Rep.  99.    The  ca.se 
has  been    again    tried  in    the  circuit  court, 
and  the  trial  resulted  in  a  verdict  for  plain 
tiff  for  .f  2,.o00.    The  facts  of  the  case,   as 
they    appeared    on  both    trials,    are   sutli- 
ciciitiy  stated  in  the   opinion    by    Mr.  Jus- 
tic(!   Oirrox    on  the  former  appeal,  and    re- 
quire no  rejietition.     On  the   last  trial  the 
jury  found   a  special  verdict,   as   follows: 
"(1)   Had   the  plaintiff  during  the  month 
of  January,  1889,  received    an   injury    just 
above  the  knee,  which   became  inflamed, 
and    produced    pus?     Answer.     Yes.     (2) 
Had  such  injury  on   the  20th   day  of  Feb- 
vnarv,   1S89,    nearlv  healed  at  the  point  of 
the  injury?     A.  Yes.     (3)   Was   the   plain- 
tiff, before  said  20th  of  February,  lame,  as 
the    result    of    such    injury?     A.  No.     (4) 
Had  the  tihki  in   the  plaintiff's   right  leg 
become  inflamed   or  diseased  to  some  ex- 
tent before  he  received  the   blow   or   kick 
from   the   defendant?      A.  No.     (5)   What 
Avas  the  exciting  cause  of  the  injury  to  the 
plaintiff's  leg?     A.  Kick.     (G)   Did  the  de- 
fendant,  in    touching   the  plaintiff     with 
his  foot,  intend  to  do  him  any  harm?     A. 
No.     (7)  At  what  sum   do   you  assess  the 
damages  of  the  plaintiff?     A".  Twenty-five 
hundred    dollars."     The  defendant  moved 
for  judgment  in   his  favor  on  the  verdict, 
and  al.so   for  a   new    trial.     The   plaintiff 
moved   for  judgment  on  the  verdict  in  his 
favor.  Themotionsof  defendant  were  over- 
ruled, and  that   of   the   plaintiff   granted. 
Thereupon     judgment    for     plaintiff,     for 
$2,500  damages  and  costs  of  suit,  was  duly 
enteied.     The  defendant  appeals  from  the 
judanient. 

T.  W.  Haight  (J.V.  Quarles,of  counsel), 
for  appellant,  to  sustain  the  proposition 
that  where  there  is  no  evil  intent  there  can 
be  no  recovery,  cited:  2  Greenl.  Ev.  §§  82- 
85:  2  Add.  Torts,  §  790;  Cooley,  Torts,  p, 
W2;  Coward  v.Baddeley,  4  Hurl.  &  N.  478; 


Christopherson  v.  Bare,  11  Q.  B.  473;  Holl- 
nian  v.  Eppers,  41  Wis.  251:  K'-ll  v.  T.ull, 
49  Wis.  405,  5  N.  W.  Rep.  874:  Cr  mdall  v. 
Transportation  Co.,  IGFed.Rei  .7'),  Brown 
V.  Kendall,  GCush.  292. 

Ryan  &  Merton,  for  respondent. 

LYON,  J.  (after  stating  the  facts).  Sev- 
eral errors  are  assigned,  only  three  of 
which  will  be  considered. 

I.  The  jury  having  found  that  the  de- 
fendant, in  touching  the  plaintiff  with  his 
foot,  did  not  intcmd  to  do  him  any  hai-m, 
counsel  for  defendant  maintain  that  tiie 
plaintiff  hasnocauseof  action,  and  that  de- 
fendant's motion  for  judgment  on  the  spe- 
cial verdict  should  have  been  granted. 
In  supi)ort  of  this  proposition  counsel 
quote  from  2  Greenl.  Ev.  §  83,  the  rule 
that  "the  intention  to  do  harm  is  of  the 
essence  of  an  assault."  Such  is  the  rule, 
no  doubt,  in  actions  or  prosecutions  Un- 
mere  assaults.  But  this  is  an  action  to 
recover  damages  for  an  alleged  assault 
and  battery.  In  such  case  the  rule  is  cor- 
rectly stated,  in  many  of  the  authorities 
cited  by  counsel,  that  plaintiff  must  show 
either  that  the  intention  was  unlawful,  or 
that  the  defendant  is  in  fault.  If  the  in- 
tended act  is  unlawful,  the  intention  to 
commit  it  must  necessarily  be  unlawful. 
Hence,  as  applied  to  tiiis  case,  if  the  kick- 
ing of  the  plaintiff  by  the  defendant  v^-as 
an  unlawful  act,  the  intention  of  defend- 
ant to  kick  him  was  also  unlawful.  Had 
the  uarties  been  upon  the  play-grounds 
of  the  school,  engaged  in  the  usual  boy- 
ish-sports,  the  defendant  being  free  from 
malice,  wantonness,  or  negligence,  and 
intending  no  harm  to  jdaintiff  in  what  he 
did,  we  should  hesitate  to  hold  the  act  of 
the  defendant  unlawful,  or  that  he  could 
be  held  liable  in  tliis  action.  Some  con- 
sideration is  due  to  the  implied  license  of 
the  play-grounds.  But  it  appears  that 
the  injury  was  inflicted  in  the  scIkjoI,  after 
it  had  been  called  to  order  by  the  teacher, 
and  after  the  regular  exercises  of  the 
school  had  commenced.  Under  these  cir- 
cumstances, no  implied  license  to  do  the 
act  cumplained  of  existed,  and  such  act 
was  a  violation  of  the  order  and  decorum 
of  the  school,  and  necessarily  unlawful. 
Hence  we  are  of  the  opinion  that,  under 
the  evidence  and  verdict,  the  action  may 
be  sustained. 

II.  The  plaintiff  testitied.  as  a  witne^ss  in 
his  own  behalf,  as  to  the  circumstances  of 
thealleged  injury  inflicted  upon  him  by  the 
defendant,  and  also  in  regard  to  the  wound 
he  received  in  January,  near  thesameknee, 
mentioned  in  the  special  verdict.  The  de- 
fendant claimed  that  such  wound  was  the 
proximate  cause  of  the  injury  to  plaintiff's 
leg,  in  that  it  produced  a  diseased  condi- 
tion of  the  bone,  which  disease  was  in  act-  ♦ 
ive  progress  when  he  received  the  kick, 
and  that  such  kick  did  nothing  more  than 
to  change  the  location,  and  perhaps  some- 
what hasten  the  progress,  of  thedisea.se. 
The  testimony  of  Dr.  Bacon,  a  witness  for 
plaintiff,  (who  was  plaintiffs  attending 
phvsician,)  elicited  on  cross-examination, 
teiids  to  some  extent  to  establish  such 
claim.  Dr.  Bacon  first  saw  the  injured  leg 
on  February  25th,  and  Dr.  Philier,  also 
one  of   plaintiff's   witnesses,   first  saw  it 


166 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TOUT. 


March  Sth.  Dr.  Philler  was  called  as  a 
witness  after  the  examination  of  the  plain- 
tiff and  Dr.  Bacon.  On  his  direct  examina- 
tion he  testified  as  follows  :  "I  heard  the 
testimony  of  Andrew  Vosburgin  re;^f»rd  to 
how  lie  received  the  kick,  February  20th, 
from  his  playmate.  I  heard  read  the  tes- 
timony of  Miss  More,  and  heard  where  lie 
said  he  received  this  kick  on  that  day." 
(Miss  More  had  already  testified  that  she 
was  the  teacher  of  the  school,  and  saw  de- 
fendant standing  in  the  aisle  by  his  seat, 
and  kicking  across  the  aisle,  hitting  the 
plaintiff.)  The  following  question  was 
then  propounded  to  Dr.  Philler:  "After 
hearing  that  testimony,  and  what  you 
know  of  the  case  of  the  boy,  seeing  it  on 
the  Sth  daj'  of  March,  what,  in  your  opin- 
ion, was  the  exciting  cause  that  produced 
the  inflammation  that  you  saw  in  that 
boy's  leg  on  that  day?"  An  objection  to 
this  question  was  overruled,  and  the  wit- 
ness answered :  "The  exciting  cause  was 
the  injury  received  at  that  day  by  the  kick 
on  the  shin-bone."  It  will  be  observed 
that  the  above  question  to  Dr.  Philler 
calls  for  his  opinion  as  a  medical  expert, 
based  in  part  upon  the  testimony  of  the 
plaintiff,  as  to  what  was  the  proximate 
cause  of  the  injury  to  plaintiff's  leg.  The 
plaintiff  testified  to  two  vAounds  upon  his 
leg,  either  of  which  might  have  been  such 
proximate  cause.  Without  taking  both 
of  these  wounds  into  consideration,  the 
expert  could  give  no  intelligent  or  reliable 
opinion  as  to  Avhich  of  them  caused  the  in- 
jury complained  of;  yet,  in  the  hypothet- 
ical question  propounded  to  him,  one  of 
these  prot)abl9  causes  was  excluded  from 
the  consideration  of  the  witness,  and  he 
was  required  to  give  his  opinion  upon  an 
imperfect  and  insufficient  hypothesis, — one 
which  excluded  from  his  consideration  a 
material  fact  essential  to  an  intelligent 
opinion.  A  consideration  by  the  witness 
of  the  wound  received  by  the  plaintiff  in 
January  being  thus  prevented,  the  wit- 
ness had  but  one  fact  upon  wliich  to  base 
his  opinion,  to- wit,  the  fact  that  defend- 
ant kicked  plaintiff  on  the  shin-bone. 
Based,  as  it  necessarily  was,  on  that  fact 
alone,  the  opinion  of  Dr.  Philler  that  the 
kick  caused  the  injury  was  inevitable, 
when,  had  the  proper  hypothesis  been 
submitted  to  him,  his  opinion  might  have 


been  different.  The  answer  of  Dr.  Philler 
to  the  hypothetical  question  put  to  him 
may  have  had,  probably  did  have,  a  con- 
trolling influence  with  the  jury,  for  they 
found  by  their  verdict  that  his  opinion 
was  correct.  Surely  there  can  be  no  rule 
of  evidence  which  will  tolerate  a  hypothet- 
ical question  to  an  expert,  calling  for  his 
opinion  in  a  matter  vital  to  the  cas3, 
which  excludes  from  his  consideration  facts 
already  proved  by  a  witness  upon  whose 
testimony  such  hypothetical  question  is 
based,  when  a  consideration  of  such  facts 
by  the  expert  is  absolutely  essential  to  en- 
able him  to  form  an  intelligent  opinion 
concerning  such  matter.  The  objection  to 
the  question  put  to  Dr.  Philler  should 
have  been  sustained.  The  error  in  permit- 
ting the  witness  to  answer  the  question 
is  material,  and  necessarily  fatal  to  the 
judgment. 

III.  Certain  questions  were  proposed  on 
behalf  of  defendant  to  be  submitted  to 
the  jury,  founded  upon  the  theory  that 
only  such  damages  could  be  recovered  as 
the  defendant  might  reasonably  be  stri>- 
posed  to  have  contemplated  as  likely  to 
result  from  his  kicking  the  plaintiff.  The 
court  refused  to  submit  such  questions  to 
the  jury.  The  ruling  was  connect.  The 
rule  of  damages  in  actions  for  torts  was 
held  in  Brown  v.  Railway  Co.,  M  Wis.  342, 
UN.  W.  Rep.  356, 911,  to  he  that  the  wrong- 
doer is  liable  for  all  injuries  resulting  di- 
rectly from  the  wrongful  act,  whether  they 
could  or  could  not  have  been  foreseen  by 
him.  The  chief  justice  and  the  writer  of 
this  opinion  dissented  from  the  judgment 
in  that  case,  chiefly  because  we  were  of  the 
opinion  that  the  complaint  stated  a  cause 
of  action  ex  contractu,  and  not  ex  delicto, 
and  hence  that  a  different  rule  of  damages 
— the  rule  here  contended  for — was  ap- 
plicable. We  did  not  question  that  the 
rule  in  actions  for  tort  was  correctly 
stated.  That  case  rules  this  on  the  ques- 
tion of  damages.  The  remaining  errors 
assigned  are  upon  the  rulings  of  the  court 
on  objections  to  testimony.  These  rul- 
ings are  not  very  likely  to  be  repeated  on 
another  trial,  and  are  not  of  sufficient  im- 
portance to  require  a  review  of  them  on 
this  appeal.  The  judgment  of  the  circuit 
court  must  be  reversed,  and  the  cause  will 
be  remanded  for  a  new  trial. 


DIKECT   AND  CONSEQUENTIAL  DAMAGES-IN  TORT. 


167 


TUNNICLIFFE   v.   BAY    CITIES    CONSOL. 
RY.  CO. 

(61  N.  W.  11,  102  Mich.  (J24.) 

Snproino  Court  of  Michigan.     Dec  7.  1894. 

Error  to  circuit  court,  Bay  county;  Andrew 
C.  Maxwell,  Judge. 

Action  by  Louise  M.  Tunnicliffe,  by  her 
next  friend,  William  H.  Tunnicliffe,  against 
the  Bay  Cities  Consolidated  Railway  Compa- 
ny, for  personal  injuries.  Judgment  was 
rendered  for  plaintiff,  and  defendant  brings 
error.    Reversed. 

T.  A.  E.  &  J.  C.  Weadock,  for  appellant. 
James  Van  Kleeck,  for  appellee. 

MONTGOMERY,  J.  Plaintiff  is  a  married 
woman  and  a  minor.  She  sues  by  her  next 
friend  to  recover  for  personal  injuries  re- 
ceived while  attempting  to  alight  from  a 
car  of  the  defendant.  Plaintiff  recovered, 
and  defendant  brings  error.  The  negligence 
alleged  was  that  "while  plaintiff,  with  the 
consent  and  permission  of  said  defendant, 
with  due  care  and  dihgence  on  her  part,  was 
passing  out  of  said  car,  and  onto  and  over 
the  rear  platform  of  the  same,  for  the  pur- 
pose of  alighting  therefrom  and  leaving  said 
car,  and  was  stepping  from  the  platform  of 
said  car  to  the  steps  thereof,  said  car  being 
then  and  there  stationary,  said  defendant 
carelessly  and  negligently  caused  said  car, 
from  which  she  was  then  departing  and 
stepping  off,  to  be  suddenly  started,  jerked, 
and  moved  forward,  by  means  whereof  this 
plaintiff,  while  in  the  exercise  of  proper  care 
and  diligence  on  her  part,  was  thrown  down 
and  against  said  car,  and  down  and  upon 
the  platform  thereof,  and  down  and  upon 
and  against  the  steps  of  said  car,  and  her 
dress  skirt  or  skirts  caught  on  said  bolt,  so 
negligently  put,  placed,  and  permitted  to  be 
and  remain  in  said  platform  by  said  defend- 
ant as  aforesaid,  and  she  was  held  fast  to 
and  against  said  car,  and  against  the  plat- 
form of  said  car,  and  to  and  against  the 
steps  thereof,  and  partially  upon  the  ground, 
and  Avas  so  held,  dragged,  and  carried  along 
by  the  motion  of  said  car,"  etc.  The  decla- 
ration had  previously  alleged  that  defendant 
had  "carelessly  and  negligently  placed,  and 
permitted  to  be  and  remain,  an  iron  bolt, 
extending  and  projecting  above  the  rear 
platform,  to  wit,  five  inches." 

1.  In  the  course  of  the  charge  to  the  jury, 
the  circuit  judge  asked  for  suggestions  from 
counsel.  Defendant's  counsel  thereupon  ask- 
ed the  court  to  charge  that  the  plaintiff  could 
not  recover  under  any  circumstances  by  rea- 
son of  the  location  of  the  bolt  or  pedal,  and 
called  attention  to  a  portion  of  the  charge 
of  the  court  as  follows:  "I  do  not  under- 
stand that  it  is  seriously  contended  by  the 
defendant  if  the  accident  happened  because 
of  this  bolt  remaining  in  aij  improper  place 
during  the  journey,  to  endanger  women  get- 
ting oft"  the  car,  but  what  the  company  is 
liable,""— and  asked  that  it  be  modified.    The 


plaintiff's  testimony  was  to  the  eft'ect  that 
she  was  in  the  act  of  stepping  off  the  car 
when  it  started,  and  that  she  was  thrown 
backward,  and  her  clothing  caught.  She 
further  testified:  *T  took  it  for  granted  that 
my  clothes  were  caught;  I  didn't  know  in 
what.  I  could  not  see,  but  in  my  struggle 
I  threw  my  arm  behind  me,  and,  as  I  did  so. 
my  hand  came  down  on  something  that  pro- 
jected from  the  platform,  and  I  pulled  my 
skirt,  and  a  bolt  came  out  from  the  i)lat- 
form."  On  cross-examination  she  testified: 
"I  should  think  the  bolt  had  no  part  in 
throwing  me  down,  aside  from  the  jerking 
of  the  car."  It  is  claimed  by  the  defendant 
that  there  was  no  room  under  this  testimony 
for  the  jury  to  find  that  her  clothing  was 
caught  before  she  was  thrown  backward. 
But  we  think  this  construction  of  the  testi- 
mony is  too  narrow.  It  would  appear  from 
the  charge  of  the  court  that  defendant  had 
contended  before  the  jury  that  plaintiff's 
stoiy  was  unreasonable  and  that  the  injury 
could  not  have  occurred  in  the  manner  sup- 
posed by  plaintiff.  The  jury  had  a  right  to 
construe  the  facts,  and  if,  in  their  judgment, 
it  was  more  reasonable  to  suppose  that  her 
clothing  had  been  caught  upon  the  bolt  with- 
out her  knowledge  before  the  car  started, 
and  threw  her  to  the  ground,  we  cannot  say 
that  the  circumstances  of  the  case  did  not 
furnish  a  justification  for  that  inference. 

2.  On  the  trial  the  plaintiff  was  permitted, 
against  the  defendant's  objection,  to  testify 
that  before  the  injury  she  had  painted  for 
profit,  and  was  able  to  eani  five  to  ten  and 
fifteen  dollars  per  week,  and  that  by  the 
injury  she  was  rendered  unable  to  do  this 
kind  of  work.  The  court  charged  the  jury 
upon  the  subject  of  damages  as  follows: 
"She  is  entitled  to  recover,  in  case  you  so  de- 
termine from  the  evidence,— she  is  entitled, 
first,  to  the  value  of  her  time.  Whatever 
it  was  worth  a  month  or  week,  you  will 
give  it  her,  if  you  come  to  that  conclusion, 
as  I  said  before."  It  was  error  to  admit 
this  testimony,  and  permit  the  recovery  for 
the  impairment  of  the  plaintiff's  ability  to 
earn  money.  The  husband  is,  prima  facie, 
entitled  to  the  eai-nings  of  the  wife.  Hicks 
V.  McLachlan,  94  Mich.  282,  53  N.  W.  1107. 
But  it  is  contended  in  the  present  case  that, 
as  the  husband  was  a  party  to  the  proceed- 
ings as  next  friend  to  the  plaintiff,  he  would 
be  estopped  by  the  verdict  from  bringing 
suit  hereafter  to  recover  these  damages,  and 
hence  that  no  injury  could  have  been  done 
defendant;  and  Baker  v.  Railroad  Co.,  01 
Mich.  298,  51  N.  W.  897,  is  cited  as  sustain- 
ing  this  contention.  The  case  cited  fully 
recognizes  that  the  objection  as  made  in  a 
suit  prosecuted  by  the  next  friend  is  good; 
but  it  was  held  in  that  case  that  inasmuch  as 
such  testimony  was  admitted,  and  as  plain- 
tiff actually  received  payment  upon  the  judg- 
ment in  his  capacity  as  next  friend,  he  ought 
not  to  be  permitted  to  recover  it  again  in  his 
individual    capacity.     In    the    present    cast;. 


168 


DIIJECT   AND   CUNSEQll'-NTlAL    ])A.MA(;i:s     IX    T<  Ufl'. 


the  dt'f(^nclant.    upou   makiug  the  objeetiou,  ' 
had  no  reason  to  apprehend  that  the  plaintiff 
expected  to  claim  a  recoveiy  for  any  dam- 
ages not  within  the  issue,  and  particularly 
was   this   true   imder  the   circumstances   of 
this  c.ise,  as  it  appears  conclusively  that  the 
defendant  could  not  have  understood  that  it 
was  necessary  to  offer  any  proof  to  meet  the 
plaintiff's  testimony;  for,  after  the  plaintiff's 
testimony,  above  quoted,  had  been  given,  a 
question  Avas  put  to  another  witness  on  the 
same  line,  which  was  ob.1ected  to,   and  the 
court  said:    "I  think  the  husband  is  eutithnl 
to  the  wages.     I  guess  there  is  no  use  going 
into  that  in   this  case  at  all."     After  this, 
certainly,  tlie  defendant's  counsel  could  not 
be  expected  to  meet  such  proofs  as  had  crept 
in    on    this    subject;     and     the     sul)sequent 
charge,  above  quoted,  was  not  only  errone-   I 
ous  as  matter  of  law,  but,  given,  as  it  was,   \ 
after  the  previous  intimation  which  cut  otf  . 
proofs,  on   the  part  of   the  defc^ndaut,   was  I 
based  upon  a  necessarilj-  ex  parte  showing. 
3.  The  testimony  tended  to  show  that  ono 
of  the  results  of  the  injury  to  plaintiff  was  ' 
a  miscarriage.     The  court  charged  the  jui-y 
as   follows:    "As  to  this  child,  if  the  plain- 
tiff lost  a  child  by  reason  of  the  liability  of 
the   defendant   in   this  case,  you   may   give 
damage  for  it.     The  society,  enjoyment,  and 
prospective  services  of  the  child  is  a  recog-   { 
uized  element  in  that  regard,  and  you  ma.v 
give   what   it   is   reasonably   worth."     This  j 
charge  was   clearly   erroneous.     There  was, 
of   course,   no  proof  in   the  case   as   to   the 
l^rospective  earnings  of  the  cliild.  even  if  ihft 
mother  would  be   the   proper  person  to  re 
cover  for  such  loss.     Nor  would  the  loss  of 
the  child's  society  be  a  pi'oper   element  of   i 
damages.     While  the  jurj-  is  allowed  to  con-  \ 
sider  the  case  Avith  all  its  facts,  and  to  take   \ 
into  account,   for  the  purpose  of  compensa- 
tion,   not   ouly   the  physical   pain,   but   also 
mental  suffering,  in  determining  the  aAvard 
of   damages,    and   while,    of    necessity,    this 
involves  to  some  extent  a  consideration  of 
the  nature  of  the  injury,  and  cannot  exclude 
from  the  consideration  of  the  jury  the  fact 
that  the  physical  and  mental  sutt'ering  of  the 
mother  by  reason  of  such  an  injury  Avould 
be    more   intense   than   in    the   case   of   the 
ordinary  fracture  of  a  limb,  yet  beyond  this   | 
it  Avould-  not  be  competent  for  the  jury  xo 
go.   and  to   attempt   to  compensate   for  the 
sorroAV  and  grieving  of  the  mother.     As  Avas 
said  in  Bovee  v.  Town  of  Danville,   53  Vt. 
183:    "If  the  violence  done  her  person  result- 
ed in  the  miscarriage,  the  miscarriage  Avas  a 
legitimate   result   of   such    negligence.     Anj 


physical  or  mental  suffering  attending  tlio 
miscarriage  is  a  part  of  it,  and  a  proper  sub 
ject  for  compensation.  But  the-  rule  goes  no 
further.  Any  injured  feelings  following  the 
miscarriage,  not  part  of  the  pain  naturally 
attending  it,  are  too  remote  to  be  consid- 
ered an  element  of  damage.  If  the  plain- 
tiff' lamented  the  loss  of  her  offspring,  such 
grief  involves  too  much  an  element  of  senti- 
ment to  be  left  to  the  conjecture  and  caprice 
of  a  jury.  If,  like  Rachel,  she  A\'ept  for  her 
children,  and  Avould  not  be  comforted,  a 
question  of  continuing  damage  is  presented, 
too  delicate  to  be  Aveighed  by  any  scales 
which  the  laAV  has  yet  invented."  The  onl.^ 
case  which  we  have  foimd  Avhich  is  in  seem 
ing  conflict  AA'ith  this  is  that  of  Smith  v 
Overby,  30  Ga.  241;  but  the  supreme  court 
of  that  state,  in  the  later  case  of  Railroai' 
Co.  V.  Randall,  85  Ga.  207,  11  S.  E.  TOG,  ir 
treating  of  a  charge  Avhich  permitted  'of  a 
recovery  for  the  pain,  suffering,  or  sori'OAV 
resulting  from  miscarriage,  said:  "We  Avoald 
suggest  that  the  Avord  'sorroAv'  be  omitted 
from  the  charge  of  the  court  on  the  next 
trial.  It  is  most  too  remote  to  be  considered 
an  element  of  damage,  unless  it  is  that  sor- 
row Avhich  accompanies  the  actual  injury, 
and  is  suffered  at  the  time  of  the  miscar- 
riage. The  loss  of  the  child  by  a  miscar- 
i-iage  would  affect  women  so  dift'erently  that 
it  A\ould  be  hard  for  men,  sitting  as  jurors, 
to  estimate  it  as  an  element  of  damage;  and 
we  therefore  think  that  it  would  be  better  to 
omit  in  the  future  any  instruction  to  the 
jury  upon  the  question  of  sorroAV  as  an  ele- 
ment of  damage.  Pain  and  suffering  givd 
a  Avide  latitude  to  jiu-ies,  and  there  are  very 
few  complaints  made  of  the  smallness  of 
the  amounts  found  by  juries  upon  these  two 
elements  of  damage,"— citing  the  case  ot 
Bovee  v.  Tow^n  of  Danville,  above  cited. 
See,  also,  5  Am.  &  Eng.  Enc.  Law,  42. 

Numerous  other  questions  are  discussed 
in  the  briefs  of  counsel,  but  Ave  think  it  un- 
necessary to  consider  them  at  length.  Those 
relating  to  the  expressions  of  pain  and  com- 
plaints of  present  suft'ering  are  within  the 
previous  rulings  of  this  court.  See  Girard 
V.  City  of  Kalamazoo,  92  Mich.  610,  52  N. 
W^  1021;  Lacas  v.  RailAvay  Co.,  92  Mich.  412. 
52  N.  W.  745,  and  cases  cited.  None  of  the 
other  questions  are  likely  to  arise  on  a  new 
trial.  For  the  errors  pointed  out,  the  judg- 
ment Avill  be  reversed,  Avith  costs,  and  a  new 
trial  ordered. 

GRANT,  J.,  did  not  sit.  The  other  jus- 
tices concurred. 


I)lUi:(T    AM>   CONSKiJlENTIAl.    I  )AMA<  JKS-IN    TOUT. 


llil) 


MiXAAfAKA   V.    VILIAGK  OF    CLINTON- 
VILT.K. 

(22  X.  ^^'.  472,  t;2  wis.  207.) 

Suidviiie   Court  of  Wisconsin.      Fcl).   o,    1885. 

Appoal  from  circuit  court,  Waupacii  county. 

About  <!  o'cloclv  ou  the  cvoniii.u-  of  Docom- 
Itcr  22.  ISVl.  tlio  plaintiff  started  from  a  drui;- 
store  in  tlic  village  to  go  to  his  boarding- 
place.  In  doing  so.  it  became  necessary  to 
cross  New  London  street  in  front  of  the  drug- 
.store.  and  go  southward  to,  and  then  upon 
the  sidewalk  on,  the  east  side  of  that  street. 
That  sidewalli  crossed  a  ravine  over  a  trestle- 
work,  and  upon  each  side  of  it.  and  imme- 
iliately  over  the  trestle-work  there  was  a 
railing.  Tlie  north  end  of  tlie  sidewalk  com- 
menced about  four  rods  north  of  the  north 
end  of  the  trestle-work;  and  near  the  north 
end  the  surface  of  the  walk  was  about  six 
inches  above  the  surface  of  the  ground;  and 
iis  it  approached  the  trestle-work  where  the 
railing  began,  the  surface  of  the  walk  be- 
came more  elevated  from  the  ground  until  at 
a  point  near  the  north  end  of  the  trestle- 
work,  where  it  was  about  30  inches  above 
the  surface  of  the  ground;  and  that  is  the 
l)oint  where  the  testimony  tends  to  show  that 
the  plaintiff  stepped  or  fell  off  the  walk  and 
was  severely  injured.  .  The  night  was  very 
dark,  and  the  plaintiff  had  no  light.  It  had 
rained.  The  walk  was  about  five  feet  and 
four  inches  wide,  and  turned  to  the  west- 
Avard  a1)out  seven  inches  in  nineteen  feet. 
There  was  no  railing  or  harrier  on  either  side 
of  this  elevated  walk  north  of  the  north  end 
of  the  trestle-work.  The  plaintiff's  testi- 
mony tends  to  prove  that  at  the  time  of  the 
Injui'y  he  was  walking  carefully,  with  his 
hands  out  before  him  feeling  for  the  railings 
as  he  approached  them.  The  plaintiff  was 
familiar  with  the  locus  in  quo.  At  the  close 
of  the  plaintiffs  testimony,  the  defendant 
moved  for  a  nonsuit,  which  vs^as  denied.  The 
jury  found  for  the  plaintiff,  and  assessed  his 
damages  at  $1..3o0.  The  defendant  moved 
for  a  new  trial  upon  the  minutes  of  the  judge, 
and  the  same  was  overruled.  From  the  judg- 
ment entered  thereon  this  appeal  is  brought. 

Finch  &  Barber  and  F.  M.  Gurnsey,  for  ap- 
pellant. E.  P.  Smith  and  John  F.  Burke,  for 
respondent. 

CASSODAY,  J.  Upon  principles  too  well 
established  by  this  court  to  require  reitera- 
tion, the  question  whether  the  sidewalk  was 
defective  at  the  place  of  the  injury  was 
for  the  jury,  and  not  for  the  court.  Kaples 
V.  Orth  (Wis.)  21  X.  W.  033;  Hill  v.  CMty  of 
Fond  du  Lac.  r.G  Wis.  240,  14  N.  W.  2.5: 
AYright  v.  Fort  Howard.  00  Wis.  119,  18  N.  W. 
7.")0:  Kcnworthy  v.  Town  of  Irouton.  41  Wis. 
047;  Kavanaugh  v.  City  of  .Janesville.  24  Wis. 
021;  Cuthbert  v.  City  of  Appleton,  24  Wis.  383. 
The  same  is  true  with  respect  to  the  plaintiff's 
alleged  contributory  negligence.  Id.  Such 
negligence,  when  not  disclosed  by  the  plain- 


tiff's testimony,  is  purely  a  matter  of  defense. 
Kelley  v.  Railway  Co.  (Wis.)  19  N.  W.  522; 
Wright  v.  Fort  Howard,  00  Wis.  125,  IS  N. 
W.  750;  Iloth  v.  I'eters,  5.")  Wis.  405,  13  X. 
W.  219;  Randall  v.  TeU-graph  Co.,  54  Wis. 
147,  11  N.  W.  419.  Here,  the  court  went  so 
far  as  to  indicate  that  the  burdt^n  of  proving 
the  absence  of  contributory  negligence  was 
ou  the  plaintiff.  There  is  no  ground  for  the 
defendant's  exception  to  the  submission  of 
these  questions  to  the  jury,  nor  to  the  man- 
ijer  in  which  they  were  submitted.  Excep- 
tion is  takeii  because  the  court  I'efused  to 
charge,  in  effect,  that  during  the  time  plain- 
tiff had  no  diploma  he  could  not  recover  "for 
any  loss  of  service"  which  he  had  sustained 
as  a  practicing  physician.  Under  the  stat- 
ute the  plaintiff"  could  not  recover  compen- 
sation for  such  services  rendered  during  that 
period;  nor  could  he,  during  that  period,  tes- 
tify as  such  expert.  Rev.  St.  §  1430.  But 
neither  of  those  (luestions  is  here  involved. 
The  statute  did  not  undertake  to  make  the 
business  or  service  unlawful,  nor  to  pro- 
hibit or  punish  the  reception  of  voluntary 
payments  for  such  services.  Luck  v.  Ripon, 
52  Wis.  201,  8  N.  W.  815.  The  law  in  this 
respect  has  not  been  changed  by  the  act  to 
prevent  quacks  from  deceiving  the  people 
by  a.ssuming  a  professional  title.  Chapter 
2.50,  Laws  1881;  chapter  40,  Laws  1882.  Any 
loss  sustained  through  inability  to  continue 
a  lucrative  professional  practice  may  be  con- 
sidered in  estimating  such  damages.  Pliil- 
lips  V.  Railway  Co.,  5  C.  P.  Div.  280;  Ehr- 
gott  V.  Mayor,  etc.,  96  N.  Y.  204.  These 
things  being  so,  the  plaintiff  was  not  pre- 
cluded from  recovering  such  damages  as  he 
had  actually  sustained,  even  though  he  had 
no  diploma  for  a  portion  of  the  time  he  was 
so  disabled,  and  hence  the  instruction  was 
properly  rejected.  Ijuck  v.  Ripon,  .52  Wis. 
201.  8  N.  W.  815. 

Exception  is  taken  because  the  court  char- 
ged the  jury,  in  effect,  that  if  they  found 
for  the  i)laintiff,  then  no  deduction  should  be 
made  from  tlie  damages  sustained,  by  reason 
of  his  disability  having  been  prolonged  in 
consequence  of  a  predisposition  to  inflam- 
matory rheumatism,  and  becayse  the  court 
refused  to  charge,  in  effect,  that  the  plain- 
tiff' could  not  recover  if  the  injury  Avas  the 
result  of  the  disease,  and  not  the  direct  and 
proximate  result  of  the  defendant's  negli- 
gence. There  is  no  evidence  that  would 
warrant  the  jury  in  finding  that  the  disease 
interfered  in  the  least  with  the  plaintift"s 
powers  of  locomotlim,  or  in  any  way  con- 
tributed to  his  stepping  or  falling  from  the 
sidewalk  at  the  time  and  place  in  question. 
The  jury  have  found,  in  eft'ect,  that  there 
was  no  negligence  on  the  part  of  the  plain- 
tiff contributing  to  the  injury,  and  hence 
that  it  was  the  direct  and  proximate  result 
of  the  defendant's  negligence  alone.  The 
presence  of  the  disease  may  have  aggravat- 
ed and  prolonged  the  injury,  and  correspond- 
ingly    increased     the    damages.     The    jury 


170 


DIKECT   AXD   CONSEQUENTIAL   DAMAGES— IN   TOKT, 


were  expressly  authorized  to  iuclude  in  their 
verdict  such  increased  or  additional  damages, 
and  we  must  assume  that  they  did.  Was 
this  error?  Under  the  repeated  decisions  of 
this  court,  Ave  must  answer  this  question  in 
the  negative.  Oliver  v.  La  Valle,  3G  Wis. 
592;  Stewart  v.  Ripou,  38  Wis.  584;  Brown 
V.  Railway  Co.,  54  AVis.  342,  11  N.  W.  356, 
911.  In  one  of  these  cases  the  plaintiff  was 
allowed  to  recover  increased  damages  by 
reason  of  an  organic  tendency  to  scrofula  in 
his  system,  and  in  each  of  the  others  V)y  rea- 
son of  a  miscarriage  in  consequence  of  the 
injury.  In  the  Brown  Case  the  distinction 
was  made  between  actions  for  tort,  where 
the  wrong-doer  is  held  liable  for  all  in- 
juries naturally  resulting  directly  from  the 
wrongful  act,  though  unforeseen,  and  ac- 
tions for  the  breach  of  contract,  where  the 
damages  are  limited  to  such  as  arise  nat- 
urally from  such  breach  of  contract  itself, 
or  from  such  breach  committed  under  circum- 
stances in  the  contemplation  of  both  parties 
at  the  time  of  the  contract,  "as  in  Fliclc  v. 
Wetherbee,  20  Wis.  392;  Richardson  v.  Chy- 
noweth,  26  Wis.  656;  Candee  v.  Telegraph 
Co.,  34  Wis.  471;  Walch  v.  Railway  Co.,  42 
Wis.  23;  Hill  v.  Chapman,  59  Wis.  218,  18 
N.  AV.  160;  Hadley  v.  Baxendale,  9  Exch. 
341;  Hobbs  V.  Railroad  Co.,  L.  R.  10  Q.  B. 
Ill;  Hone  v.  Railway  Co.,  L.  R.  8  C.  P.  131; 
Jones  V.  George,  48  Am.  Dec.  280;  Bagley 
v.  Railroad  Co.,  30  Am.  Law  J.  490. 

The  rule  applical)le  to  contracts  thus  quot- 
ed is  taken  from  the  opinion  of  the  court  in 
the  recent  case  of  Hamilton  v.  MaGill,  L.  R. 
12  Ir.  202,  and  is  there  said  to  be  a  more 
accurate  statement  than  is  found  in  Hadley 
V.  Baxendale.  To  the  same  effect  are  the 
notes  to  that  case  in  Shir.  Lead.  Cas.  227- 
230,  and  Harvey  v.  Railroad  Co.,  124  Mass. 
425.  See,  also,  the  late  case  of  McMahon 
v.  Field,  7  Q.  B.  Div.  595,  where  the  plain- 
tiff recovered  on  contract  for  the  injury  to 
his  horses,  who  caught  cold  from  unneces- 
sary exposure  to  the  weather.  In  that  case 
Hobbs  v.  Railway  is  severely  criticised  and 
narrowly  limited,  if  not  entirely  overruled. 
The  distinction  taken  in  the  Brown  Case  has 
been  recognized  in  several  of  the  more  recent 
cases,  and  in  some  of  them  that  decision  is 
expi-essly  sanctioned.  Railroad  Co.  v.  Kemp, 
30  Am.  Law  J.  92,  61  Md.  74,  (;19;  Railroad 
Co.  v.  Eaton,  94  Ind.  474;  Ehrgott  v.  Mayor, 
etc.,  96  N.  Y.  281;  Tice  v.  Munn,  94  N.  Y. 
621;  Murdock  v.  Railroad  Co.,  133  Mass. 
15;  Beauchamp  v.  Mining  Co.,  50  Mich.  163, 
15  N.  W.  65;  McMahon  v.  Field,  7  Q.  B.  Div. 
591;  and  see  Mr.  Irving  Brown's  notes.  47 
Am.  Rep.  381,  387;  41  Am.  Rep.  5:5.  .")8.  See, 
also,  as  bearing  upon  the  question.  Railroad 
Co.  v.  Staley,  1  Am.  Law  J.  (Ohio)  136,  30 
Am.  Law  J.  110;  Lewis  v.  Railway  Co. 
(Mich.)  19  N.  W.  744.  In  actions  on  con- 
tracts of  carriage  it  has  often  been  held  that 
a  corporation  or  party  could  not  by  contract 
wholly  exempt  itself  from  all  liability  for 
injury  inflicted  by  its  own  negligence.  Rich- 


ardson V.  Railway  Co.  (Wis.)  21  N.  W.  50; 
Canfield  v.  Railroad  Co.,  45  Am.  Rep.  268; 
Sager  v.  Railroad  Co.,  50  Am.  Dec.  659.  In 
such  cases  the  damages  recoverable  cannot 
be  within  the  contemplation  of  the  contract; 
for  they  are  recovered  in  spite  of  it.  In  Mc- 
Mahon V.  Field  one  of  the  judges  went  so 
far  as  to  say  that  "the  parties  never  con- 
templated a  breach,  and  the  rule  should 
rather  be  that  the  damage  recoverable  is 
such  as  is  the  natural  and  probable  result  of 
the  breach  of  contract."  To  the  same  effect 
is  Ehrgott  v.  Mayor,  etc.,  96  N.  Y.  280.  Itt 
this  New  York  case  the  court  say:  "When 
a  party  commits  a  tort  resulting  in  a  per- 
sonal injury,  he  cannot  foresee  or  contem- 
plate the  consequences  of  his  tortious  act. 
*  *  *  A  city  may  leave  a  street  out  of 
repair,  and  no  one  can  anticipate  the  possi- 
ble accidents  which  may  happen,  or  the  in- 
juries which  may  be  caused.  *  *  *  The 
true  rule,  broadly  stated,  is  that  a  wrong- 
doer is  liable  for  the  damages  which  he 
causes  by  his  misconduct."    96  N.  Y.  281. 

"The  general  rule  in  tort,"  says  Mr.  Suth^^ 
eriandT^rSuth.  Dam.  714),  "Ms  that  the  party_ 
who  commits  a  trespass,  or  other  wrongful 
actj  is  liable  for  all  the  direct  injury  result- 
ing from  sut'li  act.  although  such  resulting 
injury  could  not  have  been  contemplated  as 
tFe  probable  result  of  the  act  done."  This 
is  expressly  sanctioned  in  the  Maryland  case 
cited  where  a  cancer  was  the  intervening 
cause.  It  is  a  contradiction  to  say  that  par- 
ties contemplate — have  in  mind — things  of 
which  they  are  supposed  to  be  unmindful. 
In  the  case  cited  from  Indiana  the  court  say 
a  wider  range  of  inriuiry  is  permissible  in 
actions  for  tort  than  for  the  simple  breach 
of  a  contract.  See  Shirley's  notes,  329.  In 
that  case  the  court  quotes  approvingly  the 
rule  stated  by  Mr.  Thompson,  which  is  sub- 
stantially the  same  rule  quoted  from  Addi- 
son approvingly  in  the  Maryland  case,  that 
"whoever  does  a  wrongful  act  is  answeral)le 
for  all  the  consequences  that  may  ensue  in 
the  ordinary  and  natural  course  of  events, 
though  such  consequence  be  immediately  and 
directly  brought  about  by  intervening  causes, 
if  such  intervening  causes  were  set  in  mo- 
tion by  the  original  wrong-doer."  Here  the 
action  is  not  on  contract,  l)ut  for  a  tort  con- 
sisting of  a  breach  of  statutory  duty.  The 
defect  in  the  wallc  is  supposed  to  have  been 
known  to  the  officers  of  the  municipality. 
The  predisposition  to  intlammatory  rheuma- 
tism was  an  intervening  cause,  but  it  was 
set  in  motion  by  the  tortious  act  complained 
of.  It  is  not  likely  tliat  tlie  officers  of  the 
village  actually  contemplated  that  the  injury 
in  (piestion  would  result  from  the  defect  in 
the  w^alk.  They  must  have  known,  howev- 
er, that  all  classes  of  people,  intirm  as  well 
as  firm,  diseased  as  well  as  healthy,  were 
liable  to  travel  upon  the  walk.  Under  ordi- 
nary circumstances  the  infirm  and  diseased 
would  liave  no  difficulty  in  passing  over  the 
walk    without    incurring    injury.       But    the 


DIRECT  AND  CONSEQUENTIAL  DAMAGES-IN  TORT. 


171 


plaintiff,  under  the  circumstances  stated,  as 
found  by  the  jury,  incurred  the  injury  with- 
out any  fault  on  his  part.  The  mere  fact 
that  he  was  more  susceptible  to  serious  re- 
sults from  the  injury  by  reason  of  the  pres- 


ence of  disease,  did  not  prevent  him  from 
recovering  the  damages  he  had  actually  sus- 
tained. 

For  the  reasons  given,  the  judgment  of  the 
circuit  court  is  affirmed. 


172 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


WESTERN    RAILWAY   OF   ALABAMA   v. 
MUTCH. 

(11  South.  894;  97  Ala.  194.) 

Supreme  Court  of  Alabama.     Dec.  1,  1892. 

Appeal  from  circuit  court,  Lee  county;  J. 
M.  Carmicbael.  Judge. 

Action  by  George  Mutch,  administrator  of 
James  Thomas  Mutch,  against  the  Western 
Railway  of  Alabama,  to  recover  for  the  al- 
leged negligent  killing  of  his  intestate  by  de- 
fendant. Judgment  for  plaintiff.  Defendant 
appeals.     Reversed. 

After  the  rendition  of  the  judgment  for 
plaintiff,  defendant  moved  the  court  for  a 
new  trial  on  the  following  grounds:  (1)  Be- 
cause the  jury  found  contrary  to  the  evidence; 
(2)  because  the  evidence  did  not  authorize  a 
verdict  against  the  defendant;  (3)  because 
Mr.  Aiigustus  Barnes,  one  of  plaintiff's  at- 
torneys, in  his  argument  to  the  jury,  in 
speaking  of  defendant's  employes  who  were 
witnesses  in  this  case,  said  "that  he  would 
not  say,  as  a  north  Alabama  attorney  had 
said,  that  they  'testified  with  halters  around 
their  necks;'  but  he  would  say  that  they  tes- 
tified with  a  conscious  regard  to  their  posi- 
tion." The  court  oA'erruled  the  motion  for  a 
new  trial,  and  the  defendant  duly  excepted. 
On  this  appeal,  prosecuted  by  the  defendant, 
there  are  many  assignments  of  eiTor,  in 
which  were  included  the  overruling  of  de- 
fendant's motions  for  a  new  trial,  but  under 
the  opinion  it  is  deemed  unnecessary  to  notice 
them  in  detail. 

Geo.  P.  Harrison  and  R.  F.  Ligon,  Jr.,  for 
appellant.  A.  &  R.  B.  Barnes,  W.  J.  Samford, 
and  J.  M.  Chilton,  for  appellee. 

STONE,  C.  J.  The  plaintiff,  George  Mutch, 
was  a  resident  of  Opelika.  His  son,  James 
Mutch,  Avas  91,^  yeais  old,  well  grown  and  de- 
veloped for  his  age,  and,  in  intelligence  and 
brightness,  was  above  the  average  of  boys 
of  his  age.  He  went  at  large  without  being 
attended  by  a  nurse  or  protectoi",  and  was  at- 
tending school.  The  Western  Railway  of  Ala- 
bama runs  through  Opelika,  and  has  a  sta- 
tion and  depot  in  that  city  or  town.  There 
w^as  an  ordinance  of  force  in  Opelika  which 
made  it  unlawful  to  run  a  train  of  cars  with- 
in the  corporate  limits  at  a  higher  rate  of 
speed  than  foiu'  miles  an  hour,  and  imposing 
a  penalty  for  its  violation.  A  freight  train 
of  the  railroad  was  coming  into  Opelika  on 
an  afternoon  in  ]\Iarch,  1.889.  It  had  box 
ears,  and  attached  to  the  side  of  one  of  them 
was  a  ladder,  placed  there  to  enable  brake- 
men  to  reach  the  top  of  the  car.  The  little 
boy,  James,  having  placed  himself  at  the  side 
of  the  track,  attempted  to  seize  the  ladder  as 
it  passed  him,  that  he  might  climb  up  on  it, 
and  thus  enjoy  a  ride.  He  did  succeed  in 
catching  a  round  of  the  ladder,  but,  in  at- 
tempting to  ascend,  he  missed  his  footing,  fell 
under  the  train,  and  w-as  so  injured  and 
crushed  that  he  died  of  the  wounds.  Up  to 
this  point  there  is  no  conflict  or  uncertainty 


in  the  testimony.  The  present  suit  was 
brought  against  the  railroad,  and  seeks  to  re- 
cover damages  from  it  for  this  alleged  negli- 
gent killing  of  plaintiff's  intestate.  The  neg- 
ligence charged  (and  there  is  no  other  pre- 
tended, or  attempted  to  be  shown)  is  that  the 
train  was  being  moved  at  a  greater  rate  of 
speed  than  four  miles  an  hoiu-.  Some  of 
plaintift"s  witnesses  testified  that  it  was  mov- 
ing at  the  rate  of  six  or  seven  miles  an  hour. 
On  the  other  hand,  defendant's  witnesses 
placed  the  speed,  some  as  low  as  three,  and 
none  above  four,  miles  an  hour.  This  was 
not  the  first  time  intestate  had  attempted  to 
spring  on  moving  trains,  and  he  had  been 
more  than  once  cautioned  against  such  at- 
tempts. Assuming  that  the  speed  of  the 
train  was  in  excess  of  four  miles  an  hour, 
Avas  there  a  causal  connection  between  such 
breach  of  duty  on  the  part  of  the  railroad 
company  and  the  injury  done  to  plaintiff's 
intestate? 

Persons  who  perpetrate  torts  are,  as  a  rule, 
responsible,  and  only  responsible,  for  the 
proximate  consequences  of  the  wrongs  they 
commit.  In  other  w^ords,  unless  the  tort  b^. 
the  proximate  cause  of  the  injury  complained 
of.  there  is  no  legal  accountability.  In  that 
able  and  valuable  work,  16  Am.  &  Bug.  Enc. 
Law,  4ot),  IS  mis  language:  'A  'proximate 
cause'  may  be  defined  as  that  cause  which  in 
natural  and  continuous  sequence,  vmbroken 
by  auj'  efficient  intei-vening  cause,  producing 
the  result  complained  of,  and  Avithout  which 
that  result  Avould  not  have  occurred;  and  it 
is  laid  doAvn  in  many  cases,  and  by  leading 
text  writers,  that,  in  order  to  warrant  a  find- 
ing that  negligence,  or  an  act  not  amounting 
to  wanton  Avrong,  is  the  proximate  cause  of 
an  injury,  it  must  appear  that  the  injuiy  was 
the  natural  and  probable  consequence  of  the 
negligence  or  Avrongful  act,  and  that  it  was 
such  as  luight  or  ought  to  have  been  foreseen, 
in  the  light  of  the  attending  circumstances." 
On  page  431  of  the  same  volume  it  is  said: 
"To  constitute  actionable  negligence,  there 
must  be  not  only  a  causal  connection  between 
the  negligence  complained  of  and  the  injury 
suffered,  but  the  connection  must  be  by  a 
natural  and  unbroken  sequence,  Avithout  iu- 
tervenmg  etficient  causes;  so  that,  but  for 
the  negligence  of  the  defendant,  the  injury 
would  not  have  occurred.  It  must  not  only 
be  a  cause,  but  it  must  be  the  proximate— 
that  is,  the  direct  and  immediate,  efficient- 
cause  of  the  injury."  That  philosophic  law 
Avriter  Dr.  Wharton,  (Law  of  Negligence,  § 
75,)  expresses  the  principle  as  follows:  "If 
the  consequence  flows  from  any  particular 
negligence,  according  to  ordinaiy  natural  se- 
quence, Avithout  the  intei-vention  of  any  hu- 
man agency,  then  such  sequence,  whether 
foreseen  as  probable,  or  unforeseen,  is  im- 
putable to  the  negligence."  Quoting  from 
Chief  Baron  Pollock  with  apparent  approval, 
he  (in  section  78)  says:  "I  entertain  consid- 
erable doubt  Avhether  a  person  Avho  has  been 
guilty  of  negligence  is  responsible  for  all  the 


DIRECT  AND  CONSEQUENTIAL  DAMAGES_1N  TOUT. 


17o 


consequences  which  may  under  any  circum- 
stances arise,  and  in  respect  of  mischief 
which  could  by  no  possibility  have  been  fore- 
seen, and  which  no  reasonable  person  could 
have  anticipated.  I  am  inclined  to  consider 
the  i"ule  of  law  to  be  this:  That  a  person  is 
expected  to  anticipate  and  guard  against  all 
reasonable  consequences,  but  that  ho  is  not 
by  the  law  of  England  expected  to  anticipate 
and  guard  against  that  which  no  reasonable 
;nau  would  expect  to  occur."  In  the  same 
section  he  quotes  approvingly  the  following 
language  from  Lord  Campbell:  "If  the 
wrong  and  the  legal  damage  are  not  known 
by  common  experience  to  be  usually  in  se- 
(pience,  and  the  damage  does  not,  according 
to  the  ordinary  course  of  events,  follow  from 
the  Avrong,  the  wrong  and  the  damage  are 
not  sufficiently  conjoined  or  concatenated,  as 
cause  and  effect,  to  support  an  action."  In 
Shearman  &  Redfield's  Law  of  Negligence 
(section  2G)  the  principle  is  thus  stated:  "The 
proximate  cause  of  an  event  must  be  under- 
stood to  be  that  which,  in  a  natural  and  con- 
tinuous se(iuence,  unbroken  by  any  new 
cause,  produces  that  event,  and  without 
which  that  event  would  not  have  occuiTcd." 
The  authorities  from  which  we  have  quoted 
are  everywhere  regarded  as  standard.  What 
they  assert  is  but  the  condensation  of  the  ut- 
terances of  a  very  great  number  of  the  high- 
est judicial  tribunals,  wherever  the  principles 
of  the  common  law  prevail.  See  IG  Am.  & 
Eng.  Enc.  Law,  428,  429;  Railway  Co.  v. 
Kellogg,  94  U.  S.  4G9;  Hen-ing  v.  Skaggs,  62 
Ala.  ISO;  Daughtei-y  v.  Telegraph  Co.,  75  Ala. 
1G8.  Lynch  v.  Nurdin,  1  Q.  B.  (N.  S.)  29,  41 
E.  C.  L.  422,  is  the  strongest  of  the  cases  re- 
lied on  in  support  of  the  present  action.  The 
injury  in  that  case  occun-ed  in  a  city.  The 
headnote  contains  a  summation  of  the  facts 
as  follows:  "Defendant  (a  cart  man)  negli- 
gently left  his  horse  and  cart  unattended  in 
the  street.  Plaintiff,  a  child  seven  years  old, 
got  upon  the  cart  in  play.  Another  child  in- 
cautiously led  the  horse  on,  and  plaintiff  was 
thereby  thrown  down,  and  hurt."  It  was  held 
that  the  action  was  maintainable  for  the  re- 
covery of  damages,  "and  that  it  was  properly 
left  to  the  jury  whether  defendant's  conduct 
was  negligent,  and  the  negligence  caused  the 
injury."  In  delivering  his  opinion,  Lord 
Denman  used  the  following  language:  "If  I 
am  guilty  of  negligence  in  leaving  anything 
dangerous  in  a  place  where  I  know  it  to  be  ex- 
tremely probable  that  some  other  person  will 
unjustitiably  set  it  in  motion,  to  tlie  injury  of  a 
third,  and  if  that  injury  should  be  so  brought 
about,  I  presume  that  the  suit' ever  might  have 
redress  by  action  against  botii  or  either  of 
the  two,  but  imquestionably  against  the  first. 
*  *  *  Can  the  plaintiff,  then,  consistently 
with  the  authorities,  maintain  his  action, 
having  been  at  least  equally  in  fault?  The 
answer  is  that,  supposing  that  fact  ascertain- 
ed by  the  jury,  but  to  this  extent:  that  he 
merely  indulged  the  natin-al  instinct  of  a 
cJiild  in  aniv..-ing  liiiiiself  with  tlie  empty  cart 


and  deserted  horse,  then  we  think  that  Hi  • 
defendant  cannot  be  permitted  to  avail  him- 
self of  that  fact.  The  most  blamable  care- 
lessness of  his  servant  having  tempted  the 
child,  he  ought  not  to  reproach  the  child  with 
yielding  to  that  temptation."  Reading  the 
case  of  Lynch  v.  Nuitlin  in  the  light  shed  up- 
on it  by  Lord  Demnan's  reasoning,  no  one 
can  fail  to  note  the  marked  difference  betw(H?n 
that  case  and  the  one  we  have  in  hand.  The 
argument  by  wliich  the  learned  lord  chief 
justice  supported  the  judgment  he  announced 
has  no  application  to  the  present  one.  Th;it 
case  was  manifestly  decided  on  the  well- 
recognized  principle  that  if  one  leave  danger- 
ous machineiy,  or  any  other  thing  of  similar 
nature,  unattended,  and  in  an  exiwsed  place, 
and  another  be  injured  thei-eby,  an  action  on 
the  case  may  be  maintained  for  such  injury, 
imless  plaintiff  was  guilty  of  contributory 
negligence.  Clark  v.  Chambers,  3  Q.  B.  Div. 
327;  Kunz  v.  City  of  Troy  (N.  Y.  App.)  10  N. 
E.  442;  Stout  v.  Railroad  Co.,  2  Dill.  294, 
Fed.  Cas.  No.  13,504;  Beach,  Contrib.  Neg. 
§§  140,  20G.  Infants  of  tender  years,  aud 
wanting  in  discretion,  are  not  amenable  to 
the  disabling  effects  of  contributory  negli- 
gence. In  the  opinion  of  the  court  in  the  case 
of  Lynch  v.  Nurdin  the  causal  connection  be- 
tween the  negligence  and  the  injury  was  so 
direct  and  patent  that  rhe  driver,  exercising 
ordinary  care  and  prudence,  should  have  an- 
ticipated and  guarded  against  it.  The  impli- 
cation from  Lord  Demnan's  language  is  veiy 
strong  that  he  regarded  the  cart  man's  con- 
duct as  grossly  negligent.  Contributory  neg- 
ligence is  no  defense  to  injuries  which  result 
from  gross  negligence.  But  the  principle  de- 
clared in  Lynch  v.  Nurdin  was,  if  not  mate- 
rially shaken,  at  least  shown  to  be  inapplica- 
ble to  a  case  like  the  present  one,  in  the  two 
later  English  cases  of  Hughes  v.  Macfie,  2 
Hurl.  &  C.  744,  and  Mangan  v.  Atterton,  L.  R. 
1  Exch.  239.  See,  also,  McAlpin  v.  Powell, 
70  N.  Y.  12G;  Wendell  v.  Railroad  Co.,  91  N. 
Y.  420;  Railioad  Co.  v.  Bell,  81  111.  7G.  The 
case  of  ^lessenger  v.  Dennie,  137  Mass.  197, 
is  a  strong  authmlty  against  the  right  to 
maintain  the  present  action.  Another  case 
relied  on  in  sxipport  of  the  present  action  is 
Railroad  Co.  v.  Gladmon.  15  Wall.  401.  That 
case  is  wholly  unlike  the  present  one,  and 
rests  on  a  different  principle.  The  negli- 
gence of  defendant's  agent  was  manifest,  and 
the  injury  was  the  natural  consequence  of 
the  negligence.  Had  the  driver  been  looking 
ahead,  as  he  should  have  been,  he  would 
have  seen  the  child's  danger,  and  could  and 
would  have  stopped  his  car  before  his  horses 
did  the  injury.  The  causal  connection  in 
that  case  was  complete,  because  the  injury 
resulted  so  naturally  from  the  driver's  inat- 
tention that  the  law  regards  it  as  the  proba- 
ble consequence  of  his  negligence.  None  of 
the  cases  cited  support  the  contention  of  ap- 
pellee. 

The   ordinance    of   Opelika,   restricting  the 
speed  of  trains  within  the  corporate  limits  to 


174 


DIRECT  AND  COXSEQUEI^TIAL  DAMAGES— IN  TORT. 


four  miles  an  hour,  had  one  purpose,— one  pol- 
icy. Opelika  is  a  town  probably  of  four  or 
more  thousand  inhabitants.  The  railroad 
antedated  the  town,  and  caused  its  location 
there.  It  nms  centrally  through  the  busi- 
ness portions  of  the  place.  In  such  condi- 
tions, men  pursuing  business  avocations,  as 
well  as  idlers  and  curiosity  seekers,  wiU  con- 
gregate about  the  depot  and  track  of  the  rail- 
road, and  will  be  constantly  crossing,  if  not 
standing  on,  the  track.  They  do  both. 
Ivnowing  this  habit  of  men,  most  towns 
located  on  railroads  have  ordinances  requir- 
ing trains  passing  through  them  to  move  at  a 
low  rate  of  speed.  Why?  Not  because  they 
apprehend  tlaat  reckless  persons  will  at- 
tempt to  board  the  train  while  in  motion. 
The  wildest  conjecture  would  scarcely  take 
in  an  adventure  so  fraught  with  penl.  The 
policy  was  to  enable  persons  who  might  be 
standing  on  the  track,  or  whose  business  pm-- 
suits  required  them  to  cross  it,  to  get  off  the 
track,  and  thus  escape  the  danger  of  a  col- 
lision.    The  ordinance  had  no  other  aim. 

We  hold  as  matter  of  law  that  there  was 
no  proof  whatever  in  this  case  tending  to 
show  a  causal  connection  between  the  negli- 
gence charged  and  the  injury  suffered.  To 
illustrate  our  views:  Let  us  suppose  that 
the  negligence  charged  against  the  railroad 
company  had  been,  not  the  too  rapid  move- 
ment of  the  train,  but  some  imperfection,  de- 
cay, or  derangement  of  the  ascending  ladder 
which  caused  plaintiff's  intestate  to  fall  and 
lose  his  life.  Would  any  one  contend  the 
railroad  company  would  be  liable  for  such 
accident?  And  is  there  a  difference  in  prin- 
ciple between  the  case  supposed  and  the  one 
we  have  in  hand?  Charge  No.  21,  the  gen- 
eral charge  in  favor  of  the  defendant,  ought 
to  have  been  given.  The  great  English  com- 
mentator said,  "Law  is  the  perfection  of  hu- 
man reason."  This,  in  a  sense,  is  true.  It 
is  the  expression  of  the  combined  wisdom  of 
the  legislative  body.  It  is  the  creature,  how- 
ever, of  human  thought,  and  nothing  human 
is  perfect.  Nor  is  it  ti'ue  that  legislative 
policy  is  unchanging.  Conditions  change, 
and  the  law  which  should  adapt  itself  to  hu- 
man wants  must  change  with  them.  Still, 
while  the  law  stands  on  the  statute  book,  it 


should  be  obeyed  and  conformed  to  as  a  rule 
of  action.  If  we  cut  loose  from  its  restraints, 
we  expose  ourselves  to  the  tempests  of  hu- 
man passion  and  human  prejudice,  and,  like 
a  ship  at  sea  without  rudder  or  compass,  will 
surely  be  dashed  on  some  of  the  many 
shoals  which  are  found  all  along  the  voyage 
of  life. 

Trial  by  jury  is  a  bulwark  of  American,  as 
it  has  long  been  of  English,  freedom.  It 
wisely  divides  the  responsibility  of  detenui- 
native  adjudication,  of  punitive  administra- 
tion, between  the  judge,  trained  in  the  wis- 
dom and  intricacies  of  the  law,  and  12  men 
chosen  from  the  common  walks  of  nonprofes- 
sional life;  chosen  for  their  sound  judgment 
and  stern  impartiality.  The  one  declares  the 
rules  of  law  applicable  to  tlie  issue  or  issues 
formed,  in  the  light  of  the  testimony  ad- 
duced; the  other  weighs  the  testimony,  de- 
termines what  facts  it  proves,  and,  molded 
by  the  law  as  declared  by  the  court,  renders 
its  verdict.  In  the  jury  box,  and  under  the 
oath  the  jurors  have  solemnly  sworn  on  the 
holy  evangelists  of  Almighty  God,  there  is 
no  room  for  friendship,  partiality,  or  preju- 
dice; no  permissible  discrimination  between 
friends  and  enemies,  between  the  rich  and 
the  poor,  between  corporations  and  natural 
persons.  The  ancients  painted  the  Goddess 
of  Justice  as  blindfolded,  and  jurors  must 
be  blind  to  the  personal  consequences  of 
the  verdicts  they  render.  If  the  testimo- 
ny convinces  their  judgments  of  the  exist- 
ence of  certain  facts,  they  must  be  blind  to 
the  consequences  which  result  from  those 
facts.  A  wish  that  it  were  otherwise  fur- 
nishes no  excuse  for  deciding  against  their 
convictions.  Justice  thus  administered  com- 
mands the  approbation  of  heaven  and  earth 
alike;  and  a  verdict  thus  rendered  meets  all 
the  requirements  of  the  juror's  oath,  in  the 
fullest  sense  of  the  word,— a  true  expression 
of  the  convictions  fixed  on  the  minds  of  the 
jury  by  the  testimony.  Independent  of  the 
legal  question  considered  above,  and  which 
we  have  declared  to  be  determinative  of  this 
case,  the  verdict  of  the  jury  was  so  palpa- 
bly against  the  evidence  that  a  new  trial 
ought  to  have  been  granted  on  that  account. 

Reversed  and  remanded. 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TOUT. 


175 


CTHAMBEELAIN   v.    CITY    OF   OSHKOSH. 

(54  N.  W.  618,  84  Wis.  289.) 
Supreme  Court  of  Wisconsin.    Feb.  21,    1893. 

Appeal  from  circuit  court,  Winnebago 
county;  George  W.  Bumell,  Judge. 

Action  by  Anna  Chamberlain  against  the 
city  of  Osiilcosh  to  recover  for  personal  in- 
juries caused  by  defendant's  alleged  negli- 
gence. From  a  judgment  for  plaintiff,  and 
an  order  denying  a  new  trial,  defendant  ap- 
peals.   Reversed. 

H.  I.  Weed,  for  appellant. 

Finch  &  Barber,  for  respondent. 

For  an  ordinary,  general,  and  transient 
slipporiness,  due  to  the  ordinary  action  of 
the  elements  only,  and  capable  of  being 
removed  by  siich  ordinary  action  of  the  ele- 
ments, there  is  no  liability,  but  for  a  local, 
imusual,  and  permanent  slipperiness,  caused 
by  a  defect  in  the  street,  and  wliich  the  ordi- 
nary action  of  the  elements  would  not  re- 
move, the  city  is  liable.  Cook  v.  City  of 
Milwaukee,  24  Wis.  270,  27  Wis.  191;  Per- 
kins V.  City  of  Fond  du  Lac,  34  Wis.  435; 
Hill  V.  City  of  Fond  du  Lac,  56  Wis.  242,  14 
N.  W.  Kep.  25;  Stilling  v.  Town  of  Thorp, 
54  Wis.  528,  11  N.  W.  Rep.  906;  Grossenbach 
V.  City  of  jSlilwaukee,  65  Wis.  31,  26  N.  W. 
Rep.  182;  Paulson  v.  Town  of  Pelican,  79 
W'is.  445,  48  N.  W.  Rep.  715;  McDonald  v. 
City  of  Ashland,  78  Wis.  251,  47  N.  W.  Rep. 
434;  Cromarty  v.  City  of  Boston,  127  Mass. 
329;  Taylor  v.  City  of  Yonkers,  105  N.  Y. 
202,  11  N.  E.  Rep.  642;  Todd  v.  City  of  Troy. 
61  N.  Y.  506;  Pomfrey  v.  Village  of  Sara- 
toga Springs,  104  N.  Y.  459,  11  N.  E.  Rep. 
43;  Kinney  v.  City  of  Troy,  108  N.  Y.  567. 
15  N.  E.  Rep.  728;  Kenney  v.  City  of  Cohoes, 
(N.  Y.  App.)  3  N.  E.  Rep.  189;  Spellman  v. 
Inhabitants  of  Chicopee,  131  Mass.  443; 
Keith  V.  City  of  Brockton,  136  Mass.  119; 
Cloughessey  v.  City  of  Waterbury,  51  Conn. 
405;  Congdon  v.  City  of  Norwich,  37  Conn. 
414;  Burr  v.  Town  of  Plymouth,  48  Conn. 
460;  Landolt  v.  City  of  Norwich,  37  Cou*.. 
615;  Dooley  v.  City  of  Meriden,  44  Conn.  117: 
Hubbard  v.  City  of  Concord,  35  N.  H.  52; 
Darling  v.  Town  of  Westmoreland,  52  N.  H. 
401;  Clark  v.  City  of  Chicago,  4  Biss.  48*  l; 
Mosey  v.  City  of  Troy,  61  Barb.  580;  Mayor, 
etc.,  V.  Marriott,  9  Md.  160;  City  of  Provi- 
dence V.  Clapp,  17  How.  161;  Evans  v.  City 
of  Utica,  69  N.  Y.  166;  Darling  v.  Mayor, 
etc.,  18  Hun,  340;  Evers  v.  Bridge  Co.,  Id 
144;  Blakeley  V.  City  of  Troy,  Id.  167;Thomn^ 
v.  Mayor,  etc.,  28  Hun.  110.  In  all  thesr 
cases  the  test  of  liability  is  whether  the 
city  is  responsible  for  the  slipperiness,  either 
in  its  formation  by  a  structural  defect  in 
the  sidewalk,  or  by  allowing  it  to  remain 
too  long  after  it  is  formed.  Smooth  and 
level  ice  may  be  dangerous  as  well  as  rough 
ice,  and  the  question  simply  is,  was  any 
negligence  of  the  city  the  cause  of  its  forma- 
tion or  retention?  The  following  cases  are 
a  direct  authority  on  this  point:    Cromarty 


V.  City  of  Bo.ston,  127  Mass.  329;  Spellman 
V.  Inhabitants  of  Chicopee,  131  Mass.  443; 
Cloughessey  v.  City  of  Waterbury,  51  Conn. 
405;  Paulson  v.  Town  of  Pelican,  79  Wis.  445, 
48  N.  W.  Rep.  715.  If  the  condition  is  artifi- 
cial, instead  of  natural,  and  is  caused  by  the 
negligence  of  the  city,  the  city  Is  liable. 
The  case  of  Spellman  v.  Inhabitants  of  Chic- 
opee, supra,  is  almost  identical  in  the  facts 
with  the  case  at  bar. 

ORTON.  J.  Tliis  action  is  to  recover  dama- 
ges for  a  personal  injury  to  the  plaintiff,  oc- 
casioned by  the  want  of  repair  and  d^-'fective 
condition  of  a  walk  in  Merritt  street,  in  the 
city  of  Oshkosh.  The  defect  is  thus  describ  -d 
in  the  complaint:  "The  said  street,  known  "9 
'Merritt  Street,'  at  a  certa'n  place  i-i  s  id 
street  to  wit,  on  thi^  south  sido  of  said  Mer  itt 
street,  on  the  southeast  corner  thereof  whe  e 
said  Merritt  street  intereects  with  Ford  str  et 
of  said  city,  was,  (on  the  21st  day  of  Febi-u- 
ary,  1889,)  and  for  a  period  of  four  wee'cs  or 
more  had  been,  imsafe,  insuflici  n^,  defective, 
and  badly  out  of  repair,  in  tliis,  to  wit,  that  at 
the  point  of  junction  between  tbe  stone  cross- 
ing on  the  south  sde  of  said  M  -rritt  str  >( t, 
where  said  Merritt  street  intersects  with 
Ford  street,  and  the  sidewalk  on  the  south 
side  of  said  Merritt  street,  where  sail  st  sue 
crossing  ends,  the  authoriti  s  of  the  city  ol 
Oshko.sh,  to  wit,  this  defendant,  neglig  ntly 
permitted  a  large  hole  to  exist  w.tliin  the 
usu'l  1  ne  ai  d  course  of  travel  over  said  st>!  e 
crossing  and  sidcw.ilk.  and  nedigently  pn-- 
mitted  and  allowed  said  hole  to  cx'st  anl  re- 
main without  placing  any  guard  over  or 
aroimd  the  same,  and  negligently  al'ov.-;  d 
said  hole  to  become  filled  with  wat  ^r.  and  t  > 
become  frozen  over  with  a  large  surf  xce  of 
smooth  ice,  and  negUgently  failed  to  plica 
any  protection,  guard,  or  cover  over  or  around 
said  surface  of  ice,  ard  failed  to  take  anv  pr> 
caution  to  prevent  or  w  rn  ti  avelei-s  ov  r  ;ii  1 
crossing  or  sidewalk  trom  walking  upon  ard 
over  said  surface  of  ice.  That  persons  ti-av- 
eling  over  and  upon  said  crossing  and  side- 
walk were  compelled  to  walk  upon  and  over 
said  surface  of  ice,  and  that  the  aforesaid 
city  authorities,  to  wit,  the  defendant,  neg- 
ligently failed  to  provide  a  safe  and  sufficient 
crossing  or  passage  over  or  around  said  large 
surface  of  smooth  ice."  The  pantitf's  in- 
jury, and  the  maimer  of  it,  are  substantially 
described  as  foUows:  The  plaintiff,  w  lile 
traveling  upon  sail  Merritt  str  et  and  ov  r 
the  said  stone  cros  ing,  "did  by  necessity  a  1 1 
in  the  ordinary  course  of  travel,  walk  u  -  n 
and  over  said  large  surface  of  ice,  and  wir'  - 
out  any  fault  on  her  part  she  fell  upo  i  s  d 
suraci'  of  ice  with  gre  it  force,"  ard  .ece'v  'd 
great  bodily  injin-ias  therefrom.  Alter  the 
plaintiff  was  sworn  as  a  witn  ss  in  her  own 
behalf,  the  defendant  city  interposed  a  de- 
murrer ore  tenus  on  he  ground  hat  the  com- 
plaint did  not  state  a  cause  of  act'on,  and  tl  o 
objection  to  any  evidence  un  ler  it  was"  over- 
ruled, and  ex  ej  ion  tiken.    The  plaiutiEf  te.v 


17G 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TOUT. 


till  (1  that  wh  n  she  came  to  that  point  "h^r 
feet  came  from  under  her,  and  she  came 
down  on  her  back.  She  did  not  notice  any 
barriers  or  jriiai-ds  around  this  place,  or  any 
ashes  upon  the  sidewalk  where  she  slipped." 
According  to  the  evidence,  the  depression  in 
the  s  reet,  where  the  water  had  accumulated 
which  made  the  ice  on  whicli  the  plaintiff 
shpped  down  and  was  injured,  was  made  l.y 
the  jmiction  of  a  sidewalk  coming  down 
Ford  street  with  the  stone  cross  walk  over 
Merritt  street.  It  would  seem  that  the  slig  t 
difference  of  the  grade  of  the  two  streets 
made  the  depression.  The  slopS  of  the  plank 
sidewalk  down  to  its  junction  wilh  the  sior.e 
cross  walk  was  only  foui*  inches,  and  the  de- 
]:re:-sio;i  in  the  ston?  cr.  ss  walk  where  the  ice 
accumulated  wa.s  from  an  inch  to  an  inch  ani 
a  half.  The  plank  walk  was  over  th_^  gutter 
on  :Merritt  street.  This  defect,  if  any,  ap- 
pears to  have  been  in  the  plan  of  the  woik 
and  its  construction.  At  the  <  onclu  ion  of  V  e 
testimony  the  defendant's  motion  for  a  non- 
suit was  overruled.  The  jury  found  a  special 
verdict  "that  the  cross  walk  was  in  a  defect- 
ive and  dangerous  condition,"  and  "that  such 
condition  caused  the  plaintiff's  injury,"  and 
assessed  her  damages  at  $1,100.  It  will  be 
observed  that  the  complaint  does  not  charge 
that  tlie  plaintiff's  injury  was  caused  by  a 
h'jle  or  depression  in  the  cross  wallv.  but  that 
it  was  caused  wholly  by  the  smooth  surface 
of  the  ice  at  that  plac?,  and  such  wm  ih' 
evid  nee.  The  plaintiff  slipped  and  Rll  en  the 
smooth  surface  of  the  ice.  The  ice  was  the 
proximate  cause  of  the  injuiy.  The  d' pres- 
sion  in  the  walk  where  the  ice  formed,  if  a 
defect,  and  a  cause  of  the  injury  in  any  ten'^^e. 
was  a  remote,  and  not  the  proximate,  cau^o 
of  the  injury.  But  at  this  time  there  was  n  > 
hole,  or  even  depression,  at  that  p'ac.^.  It 
was  filled  up  by  the  ice.  It  is  too  plain  for 
argument  that  the  cause  of  tlie  plaintiff's 
injury,  both  by  the  complaint  and  tes  i  ^  ony, 
was  the  smooth  su.f 'ce  of  the  ice  on  the  <  ro  s 
walk.  The  special  verdict  is  careful  not  to 
state  the  defect  or  d  nsorous  condition.  It 
will  be  observed,  also,  thit  the  negli  rence 
of  the  city  consists  "in  faUiug  to  provid:'  a 
safe  cross'ng  or  passage  OA^er  and  around  sail 
large  surface  of  smooth  ice,  and  allowod  an  J 
permitted  sail  crossing  to  remain  in  such  in- 
sufficient, unsafe,  and  defective  coiiditi  u  for 
a  p  riod  of  four  weeks,  and  faded  to  take  any 
precaution  to  prevent  or  warn  travelers  over 
said  crossing  or  sidewalk  from  walking  upon 
and  Over  said  surface  of  ice."  The  ex'stenca 
and  continuance  of  said  icj  for  four  weeks 
was  the  presumptive  notice  to  the  city  of  t^e 
defect  complained  of.  The  plaintiff  does  not 
complain  of  being  injured  l\v  the  hole  or  de- 
pression, but  by  the  'large  surface  of  smooth 
ice."  The  depression  was  the  caus?  of  the 
water  accumulating  there,  and  the  water, 
combin-^d  with  a  low  temperature,  caused  the 
ice  to  form  which  injured  the  plaintiff.  The 
depres-ion  was  a  remot  >  caus?  tr  cars?  of 
causi  s.    The  proximate  or  direct  cause  was 


the  ice,  and  this  must  be  the  cau-^e  of  action. 
"Causa  proxima,  non  remota,  spectatur,"— the 
proximate,  and  not  the  remote,  cause,  must  be 
considered.  The  cause  nearest  in  order  of 
causation,  which  is  adequate  to  produce  the 
result,  is  the  direct  cause.  lu  law,  only  the 
direct  cause  is  considered.  These  are  fa- 
miliar maxims.  "The  proximate  cause  is  the 
cause  which  leads  to,  and  is  instrumental  in 
producing,  the  result."  3  Amer.  &  Eug.  Euc. 
Law,  45;  State  v.  Railroad  Co.,  52  N.  H.  528. 
In  this  case  the  hole  or  depression  is  not  th  > 
cause  of  the  injury  for  which  an  aclion  may 
be  brought.  It  is  too  remote.  There  is  a  di- 
rect cause  of  the  injury,  and  that  is  the  ice  on 
which  she  shpped  down,  and  that  is  the  only 
one  which  can  be  considered.  The  defect  iu 
the  street  or  walk  is  the  ice,  and  the  negli- 
gence of  the  city  consists  in  allowing  it  to  re- 
main. This  was  dangerous  to  the  traveling 
public,  and  the  cause  of  the  plaintiff's  injury 
in  the  law  and  by  the  compkiint  and  testi- 
mony. This  ice  was  smooth  and  level,  and 
accumulated  through  the  sol"  agency  of  the 
elements  and  in  the  order  of  nature.  JNo  argn- 
nient,  speculation,  or  casuistry  can  make  this 
case  any  different  from  this.  The  main  and 
important  question  which  first  presents  itself 
on  the  denuirrer  to  the  complaint,  and  again 
on  the  motion  for  a  nonsuit,  is,  is  such  a  con- 
dition of  the  walk  an  actionable  defect?  Tl  is 
question  is  settled  by  this  court  in  the  nega- 
tive in  many  cases,  after  a  verj'  full  examina- 
tion of  the  authorities  elsewhere,  which  we 
need  not  cite.  "When  the  walk  is  slippery  be- 
cause of  the  smooth  surface  of  the  snow  and 
ice  which  had  accumulated  upon  it,"  such  a 
defect  is  not  actionable.  Cook  v.  City  of  Mil- 
waukee, 24  Wis.  270,  27  Wis.  191.  In 
Perkins  v.  City  of  Fond  du  Lac,  34  Wis. 
435,  "the  walk  was  entirely  covered  with 
packed  snow  and  ice,  and  the  whole  sur- 
face of  the  walk  was  very  smooth  and 
slippery."  It  was  held  that  such  a  con- 
dition of  the  wallv  did  not  alone  constitute 
an  actionable  defect;  and  so  in  Grossenbachv. 
City  of  ^Milwaukee,  05  Wis.  31,  26  N.  W.  Rep. 
182.  This  holding  is  most  reasonable.  Such  a 
defect  in  a  walk  or  street  is  common  and 
natural  everywhere  in  tlie  winter  season,  and 
such  actions  would  be  numberless,  unreasoni- 
ble,  and  oppressive.  The  municipalities  aye 
powerless  to  prevent  or  remove  such  a  com- 
mon and  natural  condition.  The  authorities 
cited  by  the  learned  counsel  of  the  responue.:t 
are  not  applicable  to  this  case.  They  ai'e 
cases  where  other  defects  combine  with 
the  ice  to  cause  the  injuiy.  Such  defects 
must  be  present  with  the  ice,  and  they  to- 
gether constitute  a  cause  of  acfon;  as, 
where  the  ice  is  formed  on  a  steep  de- 
clivity or  descendmg  grade,  or  there  is  some 
other  condition  of  the  walk,  which,  to- 
gether with  the  ice.  makes  the  walk  danger- 
ous, as  in  Grosseubach  v.  City  of  Milwauicee 
and  Perkins  v.  City  of  Fond  du  Lac, 
supra,  and  other  cases  in  this  court.  But 
here  the  hole  or  depression  does  not  com- 


DIRECT  AND  COl^SEQUENTIAL  DAMAGES  -IN  TORT. 


177 


bine  with  tlie  ice,  and  is  not  present 
with  it.  There  is  no  hole  at  the  time, 
£3  it  is  filled  with  ice,  and  the  surface 
is  made  level  as  ice  can  be  anywhere. 
The  plaintiff  was  not  injured  by  stepping  into 
tbe  hole,  but  by  slipping  on  the  ice.  But  I 
have  said  enough  of  tliis.  The  hole  was  only 
the  remote  cause,  or  cause  of  causes,  wbieh 
LAW  DAM.2d  Ed.— 12 


produced  the  result,  and  was  not  the  direct, 
efficient,  or  adequate  cause,  which  alone  is  ac- 
tionable. The  court  shoulil  have  sustained 
the  demurrer  ore  tenns,  or,  failing  in  that, 
ought  to  have  ordered  a  nonsuit  on  the  evi- 
dence. The  judgment  of  the  circuit  co.:rt  i? 
reversed,  and  the  cause  is  remanded  for  a 
new  trial. 


CinuCuL 


{ ({  d- 


C-O^-i^. 


178 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


BLYTHE  et  al.  v.  DENVER  &  R.  G.  RY.  CO. 

(25  Pac  702,  15  Colo.  333.) 

Supreme  Court  of  Colorado.    Jan.  10,  1S91. 

Commissioners'  decision.     Error  to   dis- 
trict court,  Arapahoe  county. 

Plaintiffs  in  error  brought  suit  against 
the  defendant  as  a  common  carrier  for 
tlie  loss  of  a  package  of  merchandise  con- 
sisting of  gold  and  silver  watches,  watch- 
cases  and  movements,  of  tlie  alleged  value 
of  $726.95,  delivered  to  defendant  at  Ala- 
mosa by  one  J.  B.  Moomaw,  to  be  carried 
as  an  express  package,  directed  to  and  to 
be  delivered  to  plaintiffs  at  Denver.  The 
package  was  not  valued,  and  was  accept- 
ed and  receipted  for  as  an  ordinary  pack- 
age at  a  nominal  valuation  of  .f50,  upon 
which  charges  of  05  cents  were  paid  in  ad- 
vance for  its  transportation.  The  de- 
fendant, after  denying  the  material  alle- 
gations of  the  complaint,  admitted  tlie 
receipt  of  the  package,  the  payment  of  tlie 
money  for  its  transportation,  the  execu- 
tion and  delivery  of  its  receipt  for  the 
same,  and  specially  alleged  as  defenses: 
First,  that  the  car  in  which  such  package 
was  being  transported  was  blown  from 
the  track  by  a  furious  wind,  and  the  car 
and  contents  destroyed  by  fire,  and  that 
the  loss  was  by  inevitable  accident  and 
"the  act  of  God;"  second,  that  the  ship- 
per frauduently  concealed  the  value  of  the 
package,  and  it  was  received  as  being  only 
of  the  value  of  $50;  that  it  was  placed  in 
the  body  of  the  car,  where  ordinary  pack- 
ages were  usually  carried ;  that  defend- 
ant had  a  fire-proof  sale  in  the  car,  and 
had  the  shipper  given  the  true  value,  and 
paid  transportation  for  such  value,  the 
goods  would  have  been  placed  in  the  safe, 
and  would  not  have  been  lost;  tliat,  by 
the  terms  of  the  receipt  given,  defendant 
was  exempted  from  any  liability  exceeding 
$50.  A  replication  was  filed  putting  in 
issue  the  special  matters  pleaded  in  de- 
fense, and  averring  negligence  in  not  se- 
curing the  package  in  the  safe,  and  in  not 
making  proper  efforts  to  save  the  prop- 
erty at  the  time  of  the  disaster.  The  case 
was  tried  to  a  jury,  resulting  in  a  verdict 
for  the  defendant,  and  judgment  upon  the 
verdict. 

Lucius  P.  Marsh,  for  plaintiffs  in  error. 
Wolcott  &  Vaile,  for  defendant  in  error. 

REED,  C,  {after  stating  the  facts  as 
above.)  It  is  conceded  that  the  wrecking 
of  a  portion  of  the  train,  such  portion  con- 
sisting of  one  engine  and  four  cars,  one 
being  the  express-car  in  which  the  goods 
were  being  carried,  was  by  "the  act  of 
God,"  and  inevitable.  It  is  also  conceded 
in  argumentthathavingacoal  fireburning 
in  a  stove,  and  a  lighted  lamp  in  the  com- 
partment, as  testified  to,  was  not  negli- 
gence on  the  part  of  the  carrier.  Counsel 
for  plaintiffs  in  error  in  reply  say :  "In  the 
brief  of  defendant  in  error,  counsel  have 
assumed  for  us  a  claim  which  we  have  not 
made,  and  they  then  proceed  to  demolish 
such  assumed  claim.  They  assume  for 
us  that  we  claim  tliere  was  negligence  in 
carrying  in  the  car  a  stove  with  fire  in  it. 
*  *  *  There  was  negligence, — we  may 
call  it  by   that    name,— but    such    negli- 


gence was  in  not  making  the  requisite 
efforts  to  save  the  goods  after  the  peril 
had  been  incurred.  We  make  no  claim 
that  there  was  negligence  in  carrying  a 
stove  in  the  car. "  By  these  concessions, 
two  important  questions  are  eliminated, 
and  the  issues  are  narrowed,  the  only 
questions  remaining  being:  First.  Was 
"  the  act  of  God  "  the  proximate  and  direct 
cause  of  the  loss  sustained,  so  as  to  ex- 
onerate the  carrier  from  liability,  or  was 
it  the  remote  cause,  and  the  tire  against 
which  the  carrier  is  supposed  to  be  an  in- 
surer the  proximate  and  direct  cause? 
Second.  After  the  wrecking  and  overturn- 
ing of  the  train  by  "the  act  of  God,"  was 
the  carrier  guilty  of  negligence  in  failing 
to  protect  and  secure  the  goods  in  the 
burning  car? 

Great  ability  and  research  have  been  ex- 
pended in  attempting  to  arrive  at  and  de- 
termine upon   some  general   definition   of 
the    terms    "proximate"     and    "remote" 
causes   and   establish   a  rule  and  a  line  of 
demarkation  between  the   two.    Such   ef- 
forts appear  to   have   been  but    partially 
successful.      Both   have    received    various 
definitions,    though     differently    worded, 
amounting  to  practically  the  same  thing. 
But,  in  almost  every  instance  where   they 
have  been  attempted  to   be    applied,  their 
api)licability  seems   to    have    been   deter- 
mined by  tlie  peculiar  circumstances  of  the 
case  under  consideration.     Webster  defines 
"proximate  cause,"   "that    which    imme- 
diately precedes   and  produces  the  effect, 
as  distinguishd  fi-om  the  remote,  mediate, 
or  predisposing  cause.  "    And.  Diet.  Law  : 
"The  nearest,  the    immediate,    the  direct 
cause;  the  etticient  cause;  the  cause  that 
sets  another  or  other  causes  in  operation, 
or  dominant  cause."     But  with  these  defi- 
nitions in   view,  when  two  causes    unite 
to  produce  the  loss,  the  question   still  re- 
mains, which    was   the  proximate  cause? 
In  Insurance  Co.  v.  Tweed,   7  Wall.  52.  the 
late  lamented   Mr.   Justice    Mili>kr    said: 
"  We  have  had  cited  to  us  a  general  review 
of  the  doctrine  of  proximate  and  remote 
causes,  as  it  has  arisen'  and   been  decided 
in   the  courts  in  a  great  variety  of  cases. 
It  would  be  an  uni)rofitable  labor  to  en- 
ter into  an  examination  of  these  cases.    If 
we  could  deduce  from  them  the  best  pos- 
sible expression  of  the  rule,  it   would   re- 
main after  all  to  decide  each   case  largely 
upon  the  sptcial  facts  belonging  to  it,  and 
often    upon    the    very  nicest   discrimina- 
tions."     In   Howard  Fire  Ins.  Co.  v.  Nor- 
wich &,  N.  Y.  Transp.  Co.,  12  Wall.  199,  in 
delivering  the  opinion   of  the  court,  Mr. 
Justice    Strong    said:      "And    certainly, 
that  cause  which  set   th§  other  in  motion, 
and  gave  to  it  its  efficiency   to   do   harm 
at  the  time  of   the  disaster,  must  rank   as 
predominant. "  In  Railroad  Co.  v.  Kellogg, 
94  U.  S.  475,  it  is  said:    "The  inquiry  must 
therefore  always  be  whether  there  was  any 
intermediate  cause  disconnected   from  the 
primary  fault,  and  self-operating,   which 
produced  the  injury. "    In  Insurance  Co.  v. 
Boon,  95  U.  S.  130,  it  is  said  •     "The  prox- 
imate cause  is  the  efficient  cause;  the   one 
that  necessarily  sets  the  other  causes  in 
operation.     The  causes    that    are  merely 
incidental  or  instruments  of  a  superior  or 
controlling  agency  are  not  the  proximate 
causes   and  the   responsible  ones,  though 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


179 


they  may  be  nearer  in  time  to  the  result,   i 
Itisonlv  when  the  causes   are  independ- 
ent of  each   other  that  the  nearest  is,  of 
course,  to  be  charjied  with  the  disaster." 
Leaving    out    of   consideration,    as   we 
must,  by   concession   of  counsel,  all  ques- 
tion of  negliKence  in  regard  to  the  burning 
fire  in  the  stove,  a  lighted  kerosene  lamp, 
and   regarding  each   of  them   as  securely 
protected   against    damage    as    prudence 
would    require,   and   applying    the    rules 
above  laid    down,   it  becomes     apparent 
that  the  overturning  and  wrecking    of  the 
car   by  the  violence  of  the  wind  was  the 
proximate,   direct,   and  ellicient  cause  of 
the  loss,  and   the  fire  following,  if  not  in- 
Btantaneously,   immediately    after,    with- 
out negligence  or  any  wrongful  act  of  the 
carrier  intervening  to  produce  it,  must   he 
regarded  as  resulting  and  incidental.   It  is 
ably   contended   in    argument,  and   many 
supposed  authorities  in  support  of  tlje  po- 
sition are  cited,  that  the  negligence  of  tiie 
can-ier  in  failing  to  use  proper  exertion  to 
save  the  contents  of  the  car,  after  it  was 
overturned,  i-endered  the  defendant  liable 
for  the  loss.    If,  by  proper  diligence  and 
attention  the  goods  could  have   been   res- 
cued, a  failure  to  secure  them  would   have 
fixed   the  liability   of  the  carrier.     There 
can  be  no  doubt  of  the  correctness  of  this 
conclusion.    The  questions,  what  was  the 
proximate  cause  of  the  loss,  and   of  negli- 
gence, were  questions  of  fact   to  be  deter- 
mined  by  the  jury  from   the  evidence,  un- 
<ler  proper  instr actions  from   the  court. 
There  was  not  much  conflict  of  testimony. 
In    Railroad    Co.    v.  Kellogg,  supra,  it   is 
said  :   "In  the  nature  of  things,  there  is  in 
every  transaction   a  succession  of  events, 
more   or  less  dependent  upon  those  preced- 
ing, and   it   is  the  province  of  the  jury  to 
look  at  this  succession   of  events  or  facts, 
and  ascertain  whether  they  are  naturally 
and  probably  connected  with   each  other 
by  a  continuous  sequence,  or  are  dissev- 
ered  by  new   and  independent  agencies; 
and    tliis   must   be  determined  in  view  of 
the  circumstances  existing   at  the  time. " 
The  jury  found  as  a  fact  that  the  "act  of 
God"  was  the  proximate  cause,  and   also 
found   as   a  fact  that  there  was  no  negli- 
gence.    Viewed  in  the  light  of  all  the  evi- 
dence,  and    of    attendant  circumstances, 
the  finding  of  the  jury  was  fully  warrant- 
ed.    The  force  of  the  gale  was  such  as  to 
blow  the  cars  from  the  track  over  the  em- 
bankment.    It   was  shown   to  be  almost 
impossible  for  men  to  stand   or  walk,  and 
tliey  were  compelled   to  prostrate  them- 
selves under  the  lee  of  the  track  or  bank 
to  escape  its  fury.    The  air  was  so  full  of 


dust  and  flying  material  that  scarcely  any- 
thing could  be  seen.  The  car  contained 
inflammable  material,  and  the  fire  suc- 
ceeded the  overturning  almost  instantane- 
ously. The  messenger  escaped  with  great 
difficulty,  and  not  without  injury  from 
the  fianies.  The  i)osition  of  the  car  was 
such  that  all  movable  goods  must  have 
been  hurled  into  the  corner  of  the  top  of 
the  car.  From  the  force  of  the  wind,  and 
combustible  mateiial  of  the  car,  it  is  ob- 
vious that  the  destruction  of  the  car  and 
contents  was  inevital)le  in  a  very  brief 
space  of  time,  and  tiiat  any  attempt  to 
rescue  the  goods  would  have  been  un- 
availing. 

Considerable  criticism  is  directed  to  the 
instructions  of  the  court.  Some  of  those 
criticised,  and  upon  which  errors  are  as- 
signed, are  in  regard  to  negligence  in  the 
use  of  the  stove  and  lamp.  As  counsel 
concedes  in  his  final  argument  that  there 
was  no  negligence  in  that  i-espect,  a  re- 
view of  them  becomes  unnecessary.  Con- 
siderable attention  is  given  to  the  eighth 
instruction,  in  which  the  learned  judge 
charged  :  "  Where  one  is  pursuing  a  lawful 
avocation,  in  a  lawful  manner,  and  some- 
thing occurs  which  no  human  skill  or  f)re- 
cantion  could  foresee  or  prevent,  and  as  a 
consequence  the  accident  takes  nlace.  this 
is  called  'inevitable  accident'  or  the  'act  of 
God.'"  The  objection  urged  is  more  techni- 
cal than  substantial.  Whileit  is,  possil)iy, 
not  technically  correct,  and  while  there  is 
a  legal  distinction  between  "inevitable  ac- 
cident" and  the  "act  of  God,"  we  can  see 
nothing  in  it  to  the  prejudice  of  the  plain- 
tiff, or  that  could  have  misled  the  jury. 
The  immediate  resulting  cause  producing 
the  loss  was  the  fire,  which  might  proper- 
ly be  termed  an  "inevitable  accident" 
growina:  out  of  the  former  disaster;  while 
the  direct  cause  of  the  agency  that  worked 
the  destruction  was  the  "act  of  God." 
putting  the  resulting  agent  at  work.  We 
think  the  charge,  taken  as  a  whole,  was  a 
fair  and  impartial  statement  of  the  law, 
and  should  be  sustained.  We  advise  that 
the  judgment  be  affirmed. 

RICHMOND  and  BISSELL,  CC,  concur 
ring. 

PER  CURIAM.  For  the  reasons  stated 
in  the  foregoing  opinion  the  judgment  of 
the  court  below  is  affirmed. 

ELLIOTT,  J.,  having  tried  this  cause 
below,  did  not  participate  in  this  decision. 


180 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN   TORT. 


HAVERLY  V.  STATE  LINE  &  S.  R.  CO. 

(19  Atl.  1013,  135  Pa.  50.) 

Supreme  Court  of  Pennsylvania.    May  19, 1890. 

Appeal  from  court  of  common  pleas,  Brad- 
ford county. 

Action  by  Leroy  Ilaverly  against  the  State 
Line  &  Sullivan  Jiailroad  Company  foi-  dam- 
age caused  by  fire.  The  testimony  sliowed 
tliat  on  May  il,  1880,  about  4  or  5  o'clock  p. 
M.  a  train  of  defendant's  passed  over  its  road, 
and  near  the  tract  of  land  where  j)laintiff  was 
lumbering;  that  soon  afterwards  smoke  was 
seen  issuing  from  a  stump  in  the  line  of  the 
defendant's  right  of  way;  that  one  of  plain- 
tiff's agents  was  sent  to  put  out  this  lire, 
wiio,  returning,  reported  he  had  done  so; 
that  no  further  smoke  was  seen  in  or  around 
the  stump  until  about  10  o'clock  A.  m.  of  the 
following  day,  when  the  plaintiff  himself 
sent  a  servant,  who,  finding  the  stump  on 
fire,  poured  water  thereon  until  he  supi.osed 
it  was  entirely  extinguished,  and  he  re- 
mained there  half  or  three-quarters  of  an 
hour,  until  he  satisfied  himself  that  no  fire 
remained;  that  about  noon  of  the  same  day, 
the  wind  coming  up  and  blowing  lively,  a 
fire  broke  out  on  said  tract  in  the  vicinity  of 
said  stump,  which  could  not,  on  account  of 
the  wind,  be  controlled  by  the  plaintiff  or  his 
agents,  and  destroyed  a  quantity  of  logs  in 
which  the  plaintiff  had  an  interest.  Plaintiff 
obtained  judgment.     Defendant  appeals. 

Edward  Owrt<m,  John  F.  Sanderson,  and 
Rodney  A.  Mercur,  for  aj)i)ellant.  H.  N. 
Williams,  I.  3IcPI,erson,  E.  J.  Angle,  and 
Ji.  H.  Williams,  for  appellee. 

MITCHELL,  J.  The  test  by  which  the  line 
is  to  be  drawn  between  proximate  and  re- 
mute  cause,  in  reference  to  liability  for  the 
consequences  of  negligence,  has  been  firmly 
established  by  the  tliree  cases  of  Railroad  Co. 
V.  Kerr,  62  Pa.  St.  353;  Railroad  Co.  v.  Hope, 
80  Pa.  St.  373;  and  Hoag  v.  Railroad  Co.,  85 
Pa.  St.  293.  It  is  most  elaborately  expressed 
by  Chief  Justice  Agnew  in  Railroad  Co.  v. 
liope,  in  the  following  language:  "The  jury 
must  determine,  therefore,  whether  the  facts 
constitute  a  continuous  succession  of  events, 
so  linked  together  that  they  become  a  natural 
whole,  or  whether  tlie  chain  of  events  is  so 
broken  that  they  become  independent,  and 
the  final  result  cannot  be  said  to  be  the  nat- 
ural and  probable  consequence  of  the  pri- 
mary cause,— the  negligence  of  the  defend- 
ants." And  the  rule  is  again  put  somewhat 
more  tersely  by  the  present  chief  justice  in 
Hoag  V.  Railroad  Co.,  as  follows:  "The  in- 
jury must  be  the  natural  and  probable  conse- 
quence of  the  negligence, — such  a  conse- 
quence as  *  *  *  might  and  ought  to 
have  been  foreseen  by  the  wrong-doer  as 
likely  to  fiowfrom  his  act."  Tiie  three  lead- 
ing cases  above  referred  to,  though  frequent- 
ly cited  on  opi)osite  sides  of  the  same  argu- 
ment, are  not  at  all  in  conflict  in  principle. 
The  different  results  which  were  reached  in 
them  depended  not  on  any  different  view  of 


the  law,  but  of  the  facts,  and  on  the  applica- 
tion of  the  familiar  doctrine  that,  where  a 
plain  inference  is  to  be  drawn  from  undis- 
puted facts,  the  court  will  decide  it  as  a 
matter  of  law.  In  Railroad  Co.  v.  Kerr  the 
negligence  had  been. held  by  the  court  below 
to  be  the  proximate  cause  of  the  plaintiff's 
loss.  This' court  held  that  it  was  remote,  and 
did  not  award  a  new  venire,  but  said  that  it 
would  do  so  if  plaintiff  should  desire  it  upon 
grounds  shown.  Tiie  question  was  then 
new;  an;l,  from  what  was  said  about  the 
venire,  the  court  itself  does  not  seem  to  have 
been  entirely  clear  that  it  should  be  decided 
as  matter  of  law.  It  may  be  doubted  wheth- 
er, on  the  same  facts,  the  court  w'ould  not 
now  send  it  to  a  jury.  Certainly  no  subse- 
quent case  has  assumed  to  decide  where  the 
facts  were  so  near  the  line.  Hoag  v.  Railroad 
Co.  was  a  much  clearer  case,  and  so  were 
Railway  Co.  v.  Taylor,  104  Pa.  St.  306; 
West  Malionoy  Tp.  v.  Watson,  116  Pa.  St. 
344,  9  Atl.  Ifep.  430;  Railway  Co.  v.  Trich, 
117  Pa.  St.  390,  11  Atl.  Re\\  627;  and  tlie 
other  cases  wliere  the  court  has  pronounced 
the  negligence  to  be  remote  as  matter  of  law. 
But,  whatever  the  result  of  the  views  taken 
of  the  facts  in  these  cases,  the  principles  of 
decision  are  the  same  in  all. 

In  the  present  case  the  learned  judge  left 
the  question  of  proximate  or  remote  cause  to 
the  jury,  in  substantial  conformity  with  the 
doctrine  of  Railroad  Co.  v.  Hope.     Appellant,, 
however,  claims  that  the  succession  of  events 
was  so  broken  as  to  bring  the   case  under 
Hoag  v.  Railroad  Co.,  and  require  the  judge 
to  direct  the  jury  in  its  favor.     The  break  in 
the  chain  of  events  was  merely  a  gap  in  the- 
time.     Had  the  fire  extended  from  the  stump 
to  plaintiff's  lumber  without  interval,  on  the 
same  afternoon,  this  case  would  have  been  ex- 
actly parallel  with  Railroad  Co.  v.  Hope.    But 
the  fact  that  the  fire  smouldered  awhile  in 
the  stump,  and,  after  it  was  supposed  to  have 
been  extinguished,  broke  out  again  the  next 
day,    while   it    makes    the    conclusion    less 
obvious  that  the  damage  was  done  by  tlie 
same  fire,  does  not  interpose  any  new  cause, 
or  enable  the  court  to  say  as  matter   of  law 
that  the  casual  connection  was  broken.    The 
sequence  from  the  original  fire  to  the  burn- 
ing of  plaintiff's  logs  was  interrupted  by  two 
apparent  cessations  of  the  fire,  but  the  jury 
have  found  that  the  cessations  were  only  ap- 
parent, leaving  intervals  of  time  in  the  vis- 
ible   progress   of  the  fire,    but   making    no 
real  break  at  all  in   the  actual  connection. 
In  Railroad  Co.  v.  Kerr,  (page  360,)  it  is  said 
by  Thompson,  C.  .!.,  tiiat  the  rule  "is  not  to 
be  controlled  by  time  or  distance,  but  by  the 
succession  of  events;"  and  in  Hoag  v.  Rail- 
road Co.,  Trunkey,  p.  J.,  in  charging  the 
jury,  had  quoted  the  foregoing,  and  added: 
"Whether  the  fire  communicated  to  the  plain- 
tiff's  property  within  a  few  minutes,  or  after 
the  lapse  of  hours,  from  the   negligent  act, 
may  be  immaterial."     It  is  said  in  this  case 
that  the  agents  of  plaintiff  on  the  ground  did 
not  anticipate  a  further  spread  of  the  fire  aft- 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


181 


er  the  interval  of  time,  and  therefore  it  can- 
not be  assiuned  that  the  defendant  should 
liave  anticipated  it.  Jkit  the  agents  of  i)liiin- 
tiff  did  not  expect  it  because  they  thought  tlie 
fire  had  been  put  out,  not  because  they  did 
not  see  the  d;mger  of  its  spreading  while  it 
was  burning;  and  tliis  was  the  danger  that 
appellant  was  bound  to  contemplate,  to-wit, 
the  natural  and  probable  consequence  of  the 
original  act,  not  the  effect  of  the  sup|)Osed 
extinguishment  subsequently.  The  pauses 
in  the  progress  of  the  hre,  therefore,  and  the 
Is.pse  of  time,  while  matter  for  the  considera- 
tion of  the  jury  in  determining  the  continuity 
of  effect,  do  not  of  themselves  malce  such  a 
change  as  requires  the  court  to  say  that  they 
break  the  connection. 

But  it  is  argued  that  it  was  not  until  the 
next  morning  after  the  fire  started  in  the 
stump,  and  during  the  time  wiien  it  was  ap- 
parently extinguished,  that  the  wind  rose, 
and  became  a  new  cause  of  the  spread  of  the 
fire  to  plaintiff's  lumber.  Tliis,  however, 
was,  like  the  point  already  considered,  de- 
pendent on  the  circumstances.  In  Railroad 
Oo.  V.  Hope,  one  of  the  facts  was  a  strong 
wind  which  carried  the  fire,  and  so,  also,  it 
was  in  Railroad  Co.  v.  Lacey,  89  Fa.  St.  458, 
and  in  Railroad  Co.  v.  McKeen,  90  Pa.  St. 
129;  and  in  this  last  case,  Trunkey,  ,T.,  says 
the  jury  "could  also  determine  whether  dry 
weather  and  high  winds  in  the  spring-time 
are  extraordinary,  and  whether,  under  these 
conditions,  *  *  *  the  injury  was  within 
the  probable  foresight  of  him  whose  negli- 
gence ran  through  from  the  beginning  to  the 
end."  No  doubt  a  hurricane  or  a  gale  maybe 


sucti  as  to  be  plainly  out  of  the  usual  course 
of  nature,  and  therefore  to  be  pronounced  by 
the  court  as  the  intervention  of  a  new  cause. 
Such  a  wind  would  be  like  the  flood  in  Mor- 
rison V.  Davis,  20  Pa.  St.  171.  Rut  the  or- 
dinary danger  of  wind  helping  a  fire  to  spread 
isone  of  thethings  to  be  naturally  anticipated. 
The  lapse  of  time  before  the  wind  rose,  in  tliis 
case,  was  therefore  not  clearly  a  new  cause 
to  be  so  pronounced  by  the  court,  but  a  cir- 
cumstance to  be  considered,  with  the  others, 
by  the  jury.  On  this  branch  of  the  case, 
generally,  the  injury  was  not  more  remote 
from  the  alleged  cause  than  in  Railroad  Co.  v. 
Hope,  sui)ra.  Railroad  Co.  v.  Lacey,  89  Pa.  St. 
458,  and  Railroad  Co.  v.  McKeen,  90  Pa.  St. 
129,  and  not  so  much  so  as  in  Fairbanks  v. 
Kerr,  70  Pa.  St.  80,  and  Railroad  Co.  v.  Keigh- 
ron,  74  Pa.  St.  316,  in  all  of  which  the  ques- 
tion was  held  to  have  been  properly  submitted 
to  the  jury. 

There  remains  only  the  question  of  con- 
tributory negligence,  and  we  do  not  find  any 
evidence  that  would  have  justified  taking 
this  from  the  jury.  If  plaintiff  had  not 
known  of  the  fire  in  the  stump,  he  would 
have  had  no  duty  in  regard  to  it;  but,  know- 
ing of  it,  he  was  bound  to  take  all  reasonable 
and  practicable  measures  to  prevent  its 
spreading  to  his  lumber.  He  was  not  an 
insurer.  The  measure  of  his  duty  in  this 
regard  was  reasonable  care  and  diligence, 
and  whether  he  used  these  was  fairly  and  ac- 
curately submitted  to  the  jury.  That  they 
found  against  the  defendant's  view  was  no 
fault  of  their  instruction  as  to  the  law.  Judg- 
ment affirmed. 


182 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TOUT. 


LEWIS  V.  FLINT  &  P.  M.  RY.  CO. 

(19  N.  W.  744,  54  Mich.  55.) 
Supreme  Court  of  Michigan.     June  11,  1884. 
Error  to   Wayne.     Plaintiff   brings    error. 

Blodget  &  Patcliin  and  C.  I.  Wallier,  for 
appellant.  W.  L.  Webber  and  O.  F.  Wis- 
ner,  for  appellee. 

COOLEY,  C.  J.  Action  to  recover  dam- 
ages for  a  personal  injury.  The  facts  as 
they  appeared  on  the  trial  were  as  follows: 

The  plaintiff  resides  in  the  township  of 
Huron,  a  few  miles  east  of  Belden  station, 
on  the  road  of  defendant.  He  was  at 
Wayne  station  on  the  evening  of  January 
12,  1883,  awaiting  the  train  which  was  to  go 
south  past  Belden  in  the  night.  The  train 
left  Wayne  at  3:05  in  the  morning  of  the 
loth,  and  he  procured  his  ticket  and  took 
passage  for  Belden,  where  the  train  was 
due  at  3:30.  The  night  was  dark,  cold,  and 
wet.  The  ti'ain  stopped  when  "Belden" 
was  called,  and  plaintiff  got  off.  Belden 
was  only  a  flag  station  for  this  train,  and 
there  was  no  one  in  charge  of  the  station- 
house,  and  no  light  there.  When  plaintiff 
got  off  the  train  he  was  told  by  the  brake- 
man  or  conductor  that  they  had  run  by  the 
station  about  two  car  lengths,  and  he  re- 
plied that  if  that  was  all,  it  was  no  matter, 
as  he  had  to  go  that  way.  An  east  and 
west  highway  crosses  the  railroad  about  24 
rods  south  of  the  station-house,  which  the 
plaintiff  would  take  in  going  to  his  home. 
If  he  was  two  car  lengths  beyond  the  sta- 
tion-house, he  would  still  be  north  of  the 
highway;  and,  supposing  that  to  be  the 
case,  he  followed  the  track  along  south,  in 
preference  to  going  back  to  the  station- 
house,  from  which  a  passage  east  of  the 
track  would  have  led  him  to  the  highway. 
The  plaintiff  knew  the  place  well,  and  knew 
that  on  the  track  he  must  cross  an  open 
cattle-guard  to  reach  the  highway.  He  had 
crossed  this  before,  and  sometimes  found  a 
plank  laid  over  it.  Passing  on  he  soon  came 
to  trees  which  he  knew  were  some  distance 
south  of  the  highway,  and  he  then  knew  the 
information  given  him  as  to  Avhere  he  was 
when  he  alighted  from  the  train  was  erro- 
neous. He  turned  about  to  retrace  his 
steps,  and  followed  the  track  in  the  direc- 
tion of  the  highway.  This  he  did  carefully, 
because  it  was  very  dark,  and  he  knew 
there  was  an  open  cattle-guard  on  the  south 
side  of  the  highway,  as  Avell  as  on  the  north 
side.  He  was  looking  for  this  cattle-guard 
constantly  and  carefully.  There  were  burn- 
ing kilns  near  to  the  track  on  his  right,  and 
the  smoke  from  these  affected  his  eyes,  but 
he  saw  a  switch  light,  which  he  knew  was 
near  the  crossing,  but  which  at  the  time 
was  too  dim  to  aid  him.  He  continued  to 
approach  the  cattle-guard  carefully,  intend- 
ing, if  there  was  a  timber  or  plank  over  it,  to 
cross  upon  that;  and  if  not,  then  to  pass 
down   into   it  and   climb   out.     In   the   dim 


light  he  saw  what  he  believed  to  be  the  cat- 
tle-guard, which  seemed  to  be  several  paces 
off',  but  at  the  very  next  step  one  foot  slip- 
ped, and  as  he  attempted  to  save  himself  by 
springing  upon  the  other,  the  other  foot 
caught,  and  he  was  precipitated  into  the 
cattle-guard,  and  he  received  an  injui-y  of  a 
very  serious  and  permanent  nature.  He 
was  for  a  time  senseless,  but  then  succeed- 
ed in  drawing  himself  out  by  his  elbows, — 
not  being  able  to  use  his  lower  limbs,— and 
with  great  difticulty  he  reached  a  neighbor- 
ing tavern,  where  he  was  cared  for. 

On  the  trial  a  claim  was  made  on  the  part 
of  the  defense  that  the  plaintiff  was  negli- 
gent in  following  the  railroad  track  back  to 
the  cattle-guard,  and  in  attempting  to  cross 
it,  when  he  might  have  left  the  track  to  the 
right  and  passed  along  the  field  until  he 
came  to  the  highway;  and  evidence  was 
given  to  show  that  he  would  have  encoun- 
tered no  impediments.  But,  in  such  a  night 
as  this  was,  it  is  not  clear  that  the  field 
would  have  afforded  a  safer  passage  than 
the  highway,  and  his  failure  to  take  it 
would  at  most  only  raise  a  question  of  neg- 
ligence on  his  part  which  would  necessarily 
go  to  the  jury.  Railroad  Co.  v.  Van  Stein- 
burg,  17  Mich.  118;  Billings  v.  Breinig,  45^ 
Mich.  72,  7  N.  W.  722;  Railroad  Co.  v.  Mil- 
ler. 46  Mich.  537,  9  N.  W.  841;  Marcott  v. 
Railroad  Co.,  47  Mich.  7,  10  N.  W.  3.  In 
this  case  the  court  took  the  case  from  the 
jury,  and  directed  a  verdict  for  the  defend- 
ant. This  direction  is  understood  to  have 
been  given  on  the  ground  that  the  injury 
which  the  plaintiff  suffered  was  not  proxi- 
mate to  the  wrong  attributable  to  the  de- 
fendant, and  for  that  reason  would  not  sup- 
port an  action.  The  wrong  of  the  defend- 
ant consisted  in  carrying  the  plaintiff  past 
the  station,  and  then  giving  him  erroneous 
information  as  to  where  he  was.  If  the  in- 
jui"y  suffered  was  not  a  proximate  conse- 
quence of  this  wrong,  the  instruction  of  the 
court  was  right;  otherwise,  not.  The  ditti- 
culty  here  is  in  determining  what  is  and 
what  is  not  a  proximate  consequence  in  con- 
templation of  I.1W. 

For  the  plaintiff",  the  cases  are  cited  in 
which  it  has  been  held  that  one  whose  neg- 
ligence causes  a  tire  by  the  spreading  of 
which  the  property  of  another  is  destroyed, 
is  liable  for  the  damages,  though  the  prop- 
erty for  which  the  compensation  Avas  claim- 
ed was  only  reached  by  the  fire  after  it  had 
passed  through  intei-veuing  fields  or  build- 
ings. Kellogg  V.  Railroad  Co.,  26  Wis.  223; 
Fent  V.  Railroad  Co.,  59  111.  349;  Wiley  v. 
Railroad  Co.,  44  N.  J.  Law,  248;  Railroad  Co. 
V.  Kellogg,  94  U.  S.  469.  But  these  cases, 
we  think,  are  not  analogous  to  the  one  be- 
fore us.  The  negligent  fire  was  the  direct 
and  sole  cause  of  the  injury  in  each  in- 
stance, and  there  was  no  intervening  cause 
whatever.  The  cases  are  in  harmony  with 
Hoyt  V.  J  offers,  30  Mich.  181.  The  case  of 
Pennsylvania  Co.  v.  Hoagland,  78  Ind.  203, 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN   TORT. 


183 


seems,  at  first  view,  to  be  more  in  point. 
The  action  in  that  case  Avas  brouslit  by  a 
woman,  wlio,  in  consequence  of  misinforma- 
tion on  tlae  part  of  tJie  person  in  charge 
of  a  raih-oad  train,  left  the  car  in  the  night- 
time at  the  wrong  stopping  place,  and  wan- 
dered about  for  an  hour  or  more  before 
she  could  find  shelter,  taking  cold  from  ex- 
posure. But  here,  as  in  the  other  cases  cit- 
ed, there  was  no  cause  intervening  the 
wrong  complained  of  and  the  resulting  in- 
jury, and  the  question  of  proximate  cause 
does  not  appear  to  have  been  raised  in  the 
case.  Smith  v.  Packet  Co.,  86  N.  Y.  40S,  is 
also  relied  upon,  but  it  is  unlike  this  in  the 
important  particular  that  the  intervening 
cause,  which,  after  the  first  wrong  on  the 
part  of  the  defendant,  operated  to  bring  in- 
juiy  to  the  plaintiff,  was  a  neglect  of  proper 
care,  which  the  court  held  was  due  from  the 
defendant  to  the  plaintiff  under  the  circum- 
stances, so  that  all  the  injury  received  was  a 
proximate  result  of  the  defendant's  neglect 
of  dutj'. 

The  case  of  Brown  v.  Chicago,  etc.,  R.  Co., 
o-t  Wis.  342,  11  N.  W.  350,  more  nearly  re- 
sembles the  present  case  than  any  other  to 
which  our  attention  has  been  called  by  coun- 
sel for  the  plaintiff.  The  facts,  as  stated  in 
the  prevailing  opinion,  are  -the  following: 
The  plaintiffs,  with  their  child,  7  years  old, 
were  being  carried  on  defendant's  cars,  with 
Mauston  for  their  destination,  and  when  they 
arrived  at  a  station  three  miles  east  of  Maus- 
ton. they  left  the  train,  under  the  direction  of 
the  brakemau,  who  told  them  they  were  at 
Mauston.  It  was  in  the  night;  it  was  cloudy 
and  wet;  there  was  a  freight  train  standing 
on  a  side  track  where  they  were  put  oft"  the 
train;  there  was  no  platform,  and  no  lights 
visible,  except  on  the  freight  train.  Plain- 
tiffs soon  ascertained  they  were  not  at  Maus- 
ton, but  did  not  know  where  they  were. 
They  did  not  see  the  stiition4iouse,  though 
there  was  one,  hidden  from  their  view  by 
the  freight  train.  Tney  supposed  they  were 
at  a  place  two  miles  east,  where  the  train 
sometimes  stopped,  but  where  there  was  no 
station-house.  They  started  west  on  the 
track  towards  Mauston,  expecting  to  find  a 
house  where  they  might  stop,  but  did  not  find 
one  until  they  came  to  a  bridge,  within  a 
mile  of  Mauston,  and  then  they  thought  it 
easier  to  go  on  to  that  place  than  to  seek 
shelter  at  the  house,  which  was  a  considera- 
ble distance  from  the  track.  Mrs.  Brown 
was  pregnant  at  the  time,  and  when  she  ar- 
rived at  Mauston  was  quite  exhausted.  She 
had,  during  the  night,  severe  pains,  which 
continued  from  time  to  time,  and  were  fol- 
lowed by  fiowing,  and  at  length  by  a  miscar- 
riage, inflammation,  and  serious  illness. 
The  plaintiffs  claimed  that  the  miscarriage 
and  subsequent  sickness  were  all  caused  bj' 
the  walk  ]Mrs.  Brown  was  compelled  to  take 
to  get  from  the  place  where  they  were  left 
by  the  train  to  Mauston,  and  the  question 
in  the  case  was  whether  the  defendant  was 


liable  for  the  injury  to  Mrs.  Brown,  admit- 
ting it  to  have  been  caused  by  her  walk. 
The  majority  of  the  court  finding  that 
"there  was  no  intervening  independent 
cause  of  the  injury  other  than  the  act  of  the 
defendant,"  and  that  "all  the  acts  done  by 
the  plaintiffs,  and  from  which  the  injury 
flowed,  were  rightful  on  their  pai-t,  and 
compelled  by  the  act  of  the  defendant,"  held 
that  "tlie  injury  to  Mrs.  Brown  was  the  di- 
rect result  of  the  defendant's  negligence, 
and  that  such  negligence  was  the  proximate, 
and  not  the  remote,  cause  of  the  injury," 
quoting  Lord  Ellcnhorough  in  Jones  v.  Boyce, 
1  Starkie,  493,  that  "if  I  place  a  man  in  such 
a  situation  that  he  must  adopt  a  perilous  al- 
ternative, I  am  rcspuusiblo  for  the  conse- 
quences." 

The  case  of  Car  Co.  v.  Barker,  4  Colo.  344, 
is  opposed  to  the  case  in  Wisconsin,  as  are 
also  Hobbs  v.  Railroad  Co.,  L.  R.  10  Q.  B. 
Ill,  and  Francis  v.  Transfer  Co.,  5  Mo.  App, 
7.  But  it  is  not  necessary  to  express  any 
opinion  upon  the  conflict  which  these  cases 
disclose,  because  in  the  case  before  us  there 
was  an  independent  cause  intervening  the 
fault  of  the  defendant  and  the  injury  the 
plaintiff  sustained,  and  from  which  the  in- 
jury resulted  as  a  direct  and  immediate  con- 
sequence. To  show  what  is  understood  by 
intervening  cause,  it  may  be  useful  to  refer 
to  a  few  cases: 

Livie  V.  Janson,  12  East,  648,  was  a  c.rse 
of  insurance  on  a  ship  warranted  free  of 
American  condemnation.  In  sailing  out  of 
New  York  she  was  damaged  by  perils  of  the 
sea,  stranded,  and  wrecked  on  Governor's 
island,  and  then  seized  and  condemned.  It 
was  the  peril  of  the  sea  that  caused  the  ves- 
sel to  be  seized  and  condemned;  but  as  tha 
condemnation  was  the  proximate  cause  of 
the  loss,  the  insurers  were  held  not  liable. 
A  similar  case  is  Delano  v.  Insurance  Co., 
10  Mass.  354,  where  a  like  result  was  reach- 
ed. 

In  Tisdale  v.  Norton,  8  Mete.  (Mass.)  388, 
the  facts  were  that  a  highway  was  defective 
anu  the  plaintiff,  who  was  using  it,  went 
out  of  it  into  the  adjoining  field,  where  he 
sustained  an  injury.  He  brought  suit 
against  the  town,  whose  duty  it  was  to  keep 
the  highway  in  repair.  But  the  court  held 
that  only  as  a  remote  cause  could  the  in- 
jury of  the  plaintiff  be  said  to  be  due  to  the 
defect  in  the  highAvay.  The  proximate,  not 
the  remote,  cause  is  that  which  is  referred 
to  in  the  statute  which  gives  an  action 
against  the  town;  and  the  proximate  cause 
in  this  case  was  outside  the  highway,  not 
within  it. 

In  Anthony  v.  Slaid,  11  Mete.  (Mass.)  290, 
the  plaintiff,  who  was  contractor  with  a 
town  to  support  for  a  specified  time  and  for 
a  fixed  sum  all  the  town  paupers  in  sickness 
and  in  health,  brought  suit  against  one  who, 
it  was  alleged,  had  assaulted  and  beaten  one 
of  the  paupers,  as  a  consequence  of  which 
the  plaintiff   was  put  to  increased  expe]:c.e 


184 


DIRECT  AND  CONSEQUENTIAL  DAMAGES— IN  TORT. 


for  care  and  support,  but  the  action  was  held 
not  maintainable. 

In  Silver  v.  Frazier,  3  Allen,  382,  it  was 
decided,  that  a  principal  whose  agent  has 
disobeyed  his  instructions,  induced  to  do 
60  by  the  false  representations  of  a  third 
party,  cannot  maintain  an  action  against 
such  third  party  for  the  damage  sustained. 
Said  Bigelow,  C.  J.:  "The  alleged  loss  or 
injury  suffered  by  the  plaintiff  is  not  the 
direct  and  immediate  result  of  the  defend- 
ant's wrongful  act.  Stripped  of  its  techni- 
cal language,  the  declaration  charges  only 
that  the  agent  employed  by  the  plaintiff  to 
do  a  certain  piece  of  work  disobeyed  the 
orders  of  his  principal,  and  was  induced  to 
do  so  by  the  false  statement  of  the  defend- 
ant. In  other  words,  the  plaintiff  alleges 
that  his  agent  violated  his  duty,  and  thereby 
did  him  an  injury,  and  seeks  to  recover  dam- 
ages therefor  by  an  action  against  a  third 
person,  on  the  ground  that  he  induced  the 
agent,  by  false  statements,  to  go  contrary  to 
the  orders  of  his  principal.  Such  an  action 
is,  we  believe,  without  precedent.  The  im- 
mediate cause  of  injury  and  loss  to  the  plain- 
tiff is  the  breach  of  duty  of  his  agent.  This 
is  the  proximate  cause  of  damage.  The 
motives  or  inducements  which  operated  to 
cause  the  agent  to  do  an  unauthorized  act 
are  too  remote  to  furnish  a  good  cause  of 
action  to  the  plaintiff." 

In  Dubuque  Wood  &  Coal  Ass'n  v.  Du- 
buque, 30  Iowa,  176,  the  facts  were  that  the 
plaintiff  had  a  quantity  of  wood  deposited 
at  one  end  of  a  bridge,  which  was  to  be  tak- 
en over  the  bridge  into  the  city  of  Dubuque. 
The  bridge  was  out  of  repair,  and,  while 
awaiting  repair  by  the  city,  whose  duty  it 
was,  the  wood  was  carried  away  by  a  flood. 
The  plaintiff  sued  the  city  for  the  value  of 
his  wood;  but  it  was  held  he  could  not  re- 
cover. Beck,  J.,  in  deciding  the  case,  il- 
lustrates, the  principle  as  follows:  "An  own- 
er of  lumber  deposited  upon  the  levee  of  the 
city  of  Dubuque,  exposed  to  the  floods  of  the 
river,  starts  with  his  team  to  remove  it. 
A  bridge  built  by  the  city,  which  he  at- 
tempts to  cross,  from  defects  therein,  falls, 
and  his  horses  are  killed.  By  the  breaking 
of  the  bridge  and  the  loss  of  his  team  he 
is  delayed  in  removing  his  property.  On 
account  of  this  delay  his  lumber  is  carried 
away  by  the  flood  and  lost.  The  proximate 
consequence  of  the  negligence  of  the  city  is 
the  loss  of  his  horses;  the  secondary  conse- 
quence, resulting  from  the  first  consequence, 
is  the  delay  in  removing  the  lumber,  which 
finally  caused  its  loss.  Damage  on  account 
of  the  first  is  recoverable,  but  for  the  second 
is  denied."  Similar  to  this  are  Daniels  v. 
Ballantine,  23  Ohio  St  532;  and  McClary 
V.  Railroad  Co.,  3  Neb.  44.  In  each  of  these 
cases  the  negligence  of  the  defendant  left 
the  property  of  the  plaintiff  where,  by  an  act 
of  God,— in  one  case  a  flood,  and  in  the  other 
a  tornado,— it  was  lost  or  injured,  and  in 
each  the  act  of  God,  and  not  the  negligence, 


was  held  to  be  the  proximate  cause  of  in- 
jury. 

In  Scheffer  v.  Railroad  Co.,  105  U.  S.  249, 
it  appeared  that,  by  a  collision  of  railroad 
trains,  a  passenger  was  injured,  and,  be- 
coming thereby  disordered  in  mind  and  body, 
he,  some  eight  months  thereafter,  committed 
suicide.  Action  was  brought  against  the 
railroad  company  as  the  negligent  cause  of 
his  death.  Miller,  J.,  speaking  for  the  court, 
and  i-eferring  to  Insurance  Co.  v.  Tweed, 
7  Wall.  44,  and  Railroad  Co.  v.  Kellogg,  94 
U.  S.  4G9,  said:  "The  proximate  cause  of 
the  death  of  Scheffer  was  his  own  act  of  self- 
destruction.  It  was,  within  the  rule  in  both 
these  cases,  a  new  cause,  and  a  sufficient 
cause  of  death.  The  argument  is  not  sound 
which  seeks  to  trace  this  immediate  cause 
of  the  death  through  the  previous  stages 
of  mental  aberration,  physical  suffering,  and 
eight  months'  disease  and  medical  treatment, 
to  the  original  accident  on  the  railroad." 

In  Bosch  V.  Railroad  Co.,  44  Iowa,  402, 
the  plaintiff's  house  took  fire,  and  the  fire 
department,  because,  as  was  alleged,  of  the 
wrongful  occupation  and  expansion  of  the 
I'iver  bank,  were  unable  to  get  to  the  river 
to  obtain  water  for  putting  out  the  fire. 
Plaintiff  sued  the  defendant  for  the  loss  of 
his  property,  but  the  court  said  the  acts  of 
defendant  complained  of  "have  no  connection 
with  the  fire,  nor  with  the  hose  or  other 
apparatus  of  the  fire  companies.  They  are 
independent  acts,  and  their  influence  in  the 
destruction  of  plaintiff's  property  is  too  re- 
mote to  be  made  the  basis  of  recovery." 

In  this  last  case.  Metallic  Compression  Co. 
V.  Railroad  Co.,  109  Mass.  277,  was  referred 
to  and  distinguished.  The  facts  there  were 
that  the  plaintiff's  building  was  on  fire,  and 
water  was  being  thrown  upon  it  through 
hose,  when  an  engine  of  defendant  was 
recklessly  run  upon  the  hose  and  severed  it, 
thereby  defeating  the  efforts  to  distinguish 
the  fire,  which  otherwise  were  likely  to 
succeed.  In  that  case  the  relation  of  the 
plaintiff's  injury  to  the  defendant's  act  was 
direct  and  immediate.  So  it  was  also  in 
Billman  v.  Railroad  Co.,  76  Ind.  166;  Lane  v. 
Atlantic  Works,  111  Mass.  136;  and  Ricker 
V.  Freeman,  50  N.  H.  420,— all  of  which  are 
ruled  by  the  Squib  Case,  (Scott  v.  Shepherd, 
2  W.  Bl.  892;)  and  so,  perhaps,  are  Fair- 
banks V.  Kerr,  70  Pa.  St.  90;  and  Lake  v. 
Milliken,  62  Me.  240. 

In  Henry  v.  Railroad  Co.,  76  Mo.  288,  it 
appeared  that  the  plaintiff  was  wrongfully 
commanded  to  get  off  a  caboose  of  the  de- 
fendant, where  he  had  a  right  to  be.  He 
obeyed  the  command,  and,  while  upon  the 
ground,  stepped  upon  a  track,  where  he  was 
run  upon  and  injured  by  a  train.  Hough, 
J'.,  speaking  for  the  court,  said:  "It  is  per- 
haps probable  that  if  the  plaintiff  had  not 
been  ordered  out  of  the  caboose  he  would 
not  have  been  injured.  But  this  hypothesis 
does  not  establish  the  legal  relation  of  cause 
ajid   effect    between    the    expulsion    and   the 


DniECT  AND  COXSEQUEXTIAL  DAMAG::S— IX   TOUT. 


185 


Injury.  If  the  plaiutiif  bad  not  left  home 
he  cei'taiuly  would  not  have  been  injured 
as  be  was,  but  bis  leaviui?  bome  could  not 
therefore  be  declared  to  be  the  cause  of  bis 
injury.  As  tbe  plaintiff's  injury  M'as  neitb- 
ei-  tbe  ordinary,  natural,  nor  probable  conse- 
quence of  bis  expulsion  from  tbe  caboose, 
sucb  expulsion,  however  it  nusbt  excite  our 
indignation,  in  tbe  absence  of  any  regulation 
of  defendant  to  justify  it,  cannot  be  con- 
sidered in  this  action,  and  the  legal  aspect  of 
the  case  is  precisely  the  same  that  it  would 
have  been  if  no  such  expulsion  had  taken 
place.  It  is  to  be  regarded  as  if  the  plain- 
tiff bad  gone  to  tbe  caboose  and  could  not 
get  in  because  it  was  locked,  or,  being  able 
to  get  in,  chose  to  remain  outside." 

Further   reference  to  authorities   is   need- 
less.    The  application  of  tbe  rule  that  the 
proximate,  not  tbe  remote  cause  is  to  be  re- 
garded,    is    obscure  and    difficult  in    many 
cases,  but  not  in  this.     By  tbe  wrong  of  tbe 
defendant  tbe  plaintiff  was  carried  past  tbe 
station  where  he  bad  a  right  to  be  left,  and 
beyond  where  be  bad  a  right,  from  the  in- 
formation   received    from    defendant's    serv- 
ants, to  suppose  he  was  when  he  left  the  car. 
For  any   injury   or  inconvenience   naturally 
resulting  from  the  wrong,  and  traceable  to 
it   as   tbe   proximate   cause,    tbe   defendant 
may  be  held  responsible.     But  before  any  in- 
jury   had    been    sustained   the  plaintiff   dis- 
covered where  he  was,  and  started  back  for 
the   road    which   be   bad    intended   to   take. 
Whatever  danger  there  was  to  be  encounter- 
ed in  tbe  way  was  to  be  found  in  the  cattle- 
guard,  and  this  he  understood  and  calculated 
upon.     Evidently  it  did  not  appear  to  him 
■of  a  foi-midable  nature;    for,  on  the  supposi- 
tion that  be  was  north  of  tbe  highway  Avhen 
he  left  the  train,  be  had  voluntarily  started 
south   with  tbe  expectation  of  crossing  the 
cattle-guard    on   that    side,   over    which   he 
might  or  might  not  find  a  plank  laid,  when 
l»y  stepping  back  a  few  rods,  where  he  sup- 
posed the  station-house  to  be,  be  might  pass 
from  thence  out  to  the  highway  by  tbe  pas- 
sage-way   for   persons    and    vehicles    leading 
from  the  station-house  to  it,  and  thereby  avoid 
tbe  cattle-guard  altogether.     It  is  veiy  clear 
that  be  did  not  anticipate  danger.     Neither, 
probably,  would  any  other  person  have  an- 
ticipated   it.     The    crossing    was    a    simple 
matter;   it  was  only  to  ascertain  first  wheth- 
er a  plank  or  timber  AA-as  laid  across,  and  if 
so  to  cross  upon  it;  and  if  not,  to  step  down  in- 
to tbe  excavation  and  out  on  tbe  other  side. 
Where  was  he  to  look  for  danger?    Tbe  night 
was  dark,  it  is  tnie,  but  even  by  the  sense 
of  feeling,  when  be  knew  be  was  within  a 
few  feet  of  the  cattle-guard,  one  would  ex- 
pect him  to  be  able  to  determine  its  exact 
location.     But     then     something     happened 
which  it  is  evident  that  tbe  plaintiff,  with 
fvdl  knowledge  of  all   the  facts,   did  not  at 
all  expect  and  bad  not  feared.     Misled  ap- 
parently by  visual  deception,  be  moved  for- 


ward under   a   supposition   that  tbe   cattle- 
guard,  upon   the  brink  of  which  he  already 
stood,   A\as  some  paces   off,   and   bis  decep- 
tion, with  the  slipping  of  bis  foot,  concurred 
to  produce  the  injury.     What  was  this  but 
pure  accident?     It  was  an  event  which  hap- 
pened unexpectedly  and  without  fault.     Tbe 
defendant  or  its  agents  had  not  produced  tbe 
deception  or  caused  the  foot  to  slip;  and  sucb 
wrong  as  the  defendant  bad  been  guilty  of 
was  in  no  manner  connected  with  or  related 
to  tbe  injuiT  except  as  it  was  tbe  occasion 
for  bringing  tbe  plaintiff  where  the  accident 
occurred.     It    was   after    the    plaintilf    had 
been  brought  there  that  the  cause  of  injury 
unexpectedly  arose.    If  lightning  bad  chan- 
ced to  strike  tbe  plaintiff  at  tbat  place,  tbe 
fault  of  the  defendant  and   its   relation   to 
tbe   injury   would   have   been   tbe   same   as 
now,  and  tbe  injury  could  have  been  charged 
to   the   defendant   with   precisely   the    same 
reason  as  now.     If  the  accidental  discharge 
of  a  gun  in  tbe  hands  of  some  third  person 
had  wounded  tbe  plaintiff  as  he  approached 
the  cattle-guard,   the  connection  of   defend- 
ant's   ^^rong    Avith    tbe    injury    would    have 
been  precisely  the  same  Avbich  appears  here. 
But  the   proximate   cause  of   injury   in  tbe 
one  case  Avould  have  been  tbe  act  of  God; 
in  the  other,    inevitable  accident;    but  not 
more  plainly  accident  than  was  the  proxi- 
mate cause  here.     Back  of  that  cause  in  this 
case    were    many    others,    all    conducing    to 
bring  the  plaintiff  to  tbe  place  of  the  danger 
and  the   injuiT;    the  act  of  the  defendant 
was  the  last  of  a  long  sequence;   but.  as  be- 
tween the  causes  which  precede  tbe  proxi- 
mate cause,  tbe  law  cannot  select  one  rather 
than  any  other  as  that  to  which  tbe  final 
consequence  shall  be  attributed,  and  it  stops 
at  the  proximate  cause,  because  to  go  back 
of  it  would  be  to  enter  upon  an  investigation 
Avbicb  would  be  both  endless  and  useless. 

The  injury  being  the  result  of  pure  acci- 
dent, the  party  upon  whom  it  has  chanced  to 
fall  is  necessarily  left  to  bear  it.  No  compen- 
sation can  be  given  by  law  in  such  cases. 
Weaver  v.  Ward,  Hob.  134;  Gibbons  v.  Pepper, 
1  Ld.  Raym.  3S;  Losee  v.  Buchanan.  51  N.  Y. 
476;  Vincent  v.  Stinehour.  7  Vt.  62;  Morris 
V.  Piatt,  32  Conn.  75;  Brown  v.  Collins,  53 
N.  H.  442;  Bizzell  v.  Booker,  16  Ark.  308; 
Mai-sball  v.  Wei  wood,  38  N.  J.  Law,  339; 
Paxton  V.  Beyer,  67  111.  132;  Express  Co.  v. 
Smith,  33  Ohio  St.  511;  Plummer  v.  State, 
4  Tex.  App.  310;  Parrot  v.  Wells,  15  Wall. 
524;  Holmes  v.  Mather,  L.  R.  10  Excb.  261. 
A  case  like  this  appeals  strongly  to  the 
sympathies,  but  sympathy  cannot  rule  the 
decision. 

Upon  tbe  undisputed  facts  of  the  ease  the 
plaintiff  has  no  right  of  action  for  tbe  injury 
Avhich  has  befallen  him,  and  tbe  circuit  court 
was  correct  in  so  holding.  The  question 
what  judgment  shall  be  rendered  in  tbe  case 
is  for  tbe  present  reserved. 
Tbe  other  justices  concurred. 


186 


DIRECT  AND   CONSEQUENTIAL   DAMAGES-IN  TORT. 


WOOD  V.  PENNSYLVANIA  R.  CO. 
(35  Atl.  699,  177  Pa.  St.  306.) 

Supreme  Court  of  Pennsylvania.     Oct.  5,  189G. 

Appeal  from  court  of  common  pleas,  Phila- 
delphia county. 

Action  by  Joseph  Wood  against  the  Penn- 
sylvania Railroad  Company.  Judgment  for 
defendant.     Plaintiff   appeals.     Alhrmed. 

Fredericlc  J.  Knaus  and  Thomas  Learning, 
for  appellant.  John  Hampton  Barnes  and 
Geo.  Tucker  Bispham,  for  appellee. 

DEAN,  J.  We  take  the  facts  as  stated  hj 
the  court  below,  as  follows:  "On  the  2i;th  of 
October,  1893,  the  plaintifC,  having  bouglit  a 
return  ticket,  went  as  a  passenger  upon  the 
railroad  of  the  defendant  company  from 
Frankford  to  Holmes  burg.  After  spending 
the  day  there,  attending  to  some  matters  of 
business,  he  concluded  to  come  back  upon  a 
way  tram,  due  at  Holmesburg  at  5  minutes 
after  6  in  the  evening.  While  waiting  for 
this  train,  the  plaintiff  stood  on  the  platform 
of  the  station,  which  was  on  the  north  side 
of  the  tracks,  at  the  eastern  end  of  the  plat- 
form, with  his  back  against  the  wall  at  the 
corner.  To  the  eastward  of  the  station,  a 
street  crosses  the  railroad  at  grade.  How 
far  this  crossing  is  from  the  station  does  not 
appear  from  the  evidence.  It  was  not  so 
far  awiiy,  however,  but  that  persons  on  the 
platform  could  see  objects  at  the  crossing. 
For  at  least  150  yards  to  the  eastward  of  the 
crossing  the  railroad  is  straight,  and  then 
curves  to  the  right.  About  6  o'clock  an 
express  train  coming  from  the  east  up- 
on the  north  track  passed  the  station,  and 
the  plaintiff,  while  standing  in  the  position 
described,  w^as  struck  upon  the  leg  by  what 
proved  to  be  the  dead  body  of  a  woman,  and 
was  injured.  The  headlight  of  the  approach- 
ing locomotive  disclosed  to  one  of  the  wit- 
nesses who  stood  on  the  platfrom  two  wo- 
men in  front  of  the  train  at  the  street  cross- 
ing, going  from  the  south  to  the  north  side 
of  the  tracks.  One  succeeded  in  getting 
across  in  safety,  and  the  other  was  struck 
just  about  as  she  reached  the  north  rail. 
How  the  woman  came  to  be  upon  the  track 
there  is  nothing  in  the  evidence  to  show, 
Tliere  was  evidence  that  no  bell  was  rung  or 
whistle  blown  upon  the  train  which  struck 
the  woman  before  it  came  to  the  crossing, 
and  some  evidence  that  it  was  running  at 
the  rate  of  from  50  to  60  miles  an  hour. 
Upon  this  state  of  facts,  the  trial  judge  en- 
tered a  nonsuit."  The  court  in  banc  having 
afterwards  refused  to  take  off  the  nonsuit, 
we  have  this  appeal. 

Was  the  negligence  of  defendant  the  prox- 
imate cause  of  plaintiff's  injuiy?  Judge  Pen- 
nypacker,  delivering  the  opinion  of  a  major- 
ity of  the  court  below,  concluded  it  was  not, 
and  refused  to  take  otf  the  nonsuit.  Apply- 
ing the  rule  in  Hoag  v.  Railroad  Co.,  85  Pa. 


St.  293,  to  these  facts,  the  question  on  which 
the  case  turns  is:    "Was  the  injury  the  natu- 
ral and  probable  consequence  of  the  negli- 
gence,—such  a  consequence  as,  under  the  sur- 
rounding circumstances,  might  and  ought  to 
have    been    foreseen   by    the    wrongdoer    as 
likely  to  flow  from  his  act?"     As  concerns 
the  situation  of  plaintiff  at  the  time  of  his 
injury,  and  the  relation  of  that  fact  to  the 
cause,  whether  near  or  remote,  we  do  not 
consider    it    important.     He   was   where    he 
had  a  right  to  be, — on  the  platform  of  the 
station.     That  he  had  purchased  a  ticlcet  for 
passage  on  defendant's  road,  and  was  wait- 
ing on  its  platform  for  his  train,  has  no  par 
ticular  bearing  on  the  question.     The  duty 
of  defendant  to  him  at  that  time  was  to  pro- 
vide a  platform  and  station,  safe  structures, 
for  him  and  others  who  desired  to  travel.    In 
this  particular  its  duty  was  performed.    The 
injury  is  not  in  the  remotest  degree  attribu- 
table to  the  platform  or  the  station.     It  is 
sutiicient  to  say,  when  there,  he  was  not  a 
trespasser    on     defendant's    property,     and 
therefore   his   action  does   not  fail  for  that 
leason;    but  he  is  in  no  more  favorable  situ- 
ation as  a  suitor  than  if  he  had  been  walking 
alongside  the  railroad,   on  the  public  high- 
Vv^ay,  or  at  any  other  place  Avhere  he  had  a 
right   to  be.     The   rule   quoted   in   Hoag  v. 
Railroad  Co.,  supra,  is,  in  substance,  the  con- 
clusion of  Lord  Bacon,  and  the  one  given  in 
Brown's  Legal  Maxims.     It  is  not  only  the 
well-settled  rule  of  this  state,  bvit  is,   gen- 
erally, that  of  the  United  States.     Prof.  Jag- 
gard,  in  his  valuable  work  on  Torts,  after  a 
reference  to  very  many  of  the  cases  decided 
in  a  large  number  of  the  states,  among  them 
Hoag  V.  Railroad  Co.,  comes  to  this  conclu- 
sion:    "It  is  admitted  that  the  rule  is  difli- 
cult  of  application.     But  it  is  generally  held 
that,  in  order  to  warrant  a  finding  that  neg- 
ligence, or  an  act  hot  amounting  to  wanton 
wrong,  is  a  proximate  cause  of  an  injury,  it 
must  appear  that  the   injury   was   the   nat- 
ural and  probable  consequence  of  the  negli- 
gence or  wrongful  act,  and  that  it  ought  to 
have  been  foreseen  in  the  light  of  the  at- 
tending   circumstances."     Jag.    Torts,    c.    5. 
Judge  Cooley  states  the  rule  thus:     "If  the 
original  act  was  wrongful,  and  would  nat- 
urally, according  to  the  ordinary  course  of 
events,  prove  injurious  to  some  others,  and 
result,  and   does  actually  result,   in   injury, 
through  the  intervention  of  other  causes  not 
wrongful,  the  injury  shall  be  referred  to  the 
wrongful     cause,     passing     through     those 
which    were    innocent."     Cooley,    Torts,    69. 
This,  also,  is  in  substance  the  rule  of  Hoag 
v.   Railroad    Co.     All    the    speculations    and 
refinements  of  the  philosophers  on  the  exact 
relations   of  cause   and   effect   help   us  very 
little  in  the  determination  of  rules  of  social 
conduct.     The    juridical    cause,    in    such    a 
case,  as  we  have  held  over  and  over,  is  best 
ascertained    in   the   practical   affairs   of   lite 
by  the  application  to  the  facts  of  the  rule  in 
Hoag  v.  Railroad  Co.     Adopting  that  nile  as 


DIRECT  AND   CONSEQUENTIAL  DAJfAGES-IN   TORT. 


187 


the  tost  of  defendant's  liability,  how  do  we 
determiuo   tiie  natural  and   probable  conse- 
quences,   which    must    be    foreseen,   of    this 
act?     AVe  answer  in  this  and  all  like  cases: 
from   common    experience    and    observation. 
The  probable  consequence  of  crossing  a  rail- 
road   in    front   of   a   near   and    approaching 
train  is  death,  or  serious  injury.     Therefore, 
acting  from  an  impulse  to  self-preservation, 
or   on   the   reflection   that   prompts   to    self- 
preservation,  we  are  deterred  from  crossing. 
Our  conduct  is  controlled  by  the  natural  and 
probable   consequence   of   what   our   experi- 
ence enables  us  to  foresee.     True,   a  small 
number  of  those  who  have  occasion  to  cross 
railroads  are  reckless,  and,  either  blind  to  or 
disregardful  of  consequences,  cross,  and  are 
injured,  killed,   or  barely  escape.     But  this 
recklessness  of  the  very  few   in  no  degree 
disproves  the  foreseeableness  of  the  conse- 
quences  by  mankind   generally.     Again,   the 
competent  railroad  engineer  knows  from  his 
own  experience  and  that  of  others  in  like 
employment  that  to  approach  a  grade  high- 
way crossing  with  a  rapidly  moving  train 
without  warning  is  dangerous  to  the   lives 
and  limbs  of  the  public  using  the  crossing. 
He  knows  death  and  injury  are  the  probable 
consequences  of  his  neglect  of  duty;    there-^ 
fore  he  gives  warning.     But  does  any  one 
believe    the    natural    and    probable    conse- 
quence of  standing  50  feet  from  a  crossing, 
to  the  one  side  of  a  railroad,  when  a  train  is 
approaching,  either  with   or  without  warn- 
ing,  is  death  or   injury?    Do   not   the   most 
prudent,  as  well  as  the  public  generally,  all 
over  the  land,  do  just  this  thing  every  day, 
without  fear  of  danger?     The  crowded  plat- 
forms and  grounds  of  railroad  stations,  gen- 
erally located  at  crossings,  alongside  of  ap- 
proaching,   departing,    and    swiftly    passing 
trains,   prove  that  the  public,   from   experi- 
ence and  observation,  do  not,  in  that  situa- 
tion, foresee  any  danger  from  trains.     They 
are    there    because,    in    their   judgment,    al- 
though it  is  possible  a  train  may  strike  an 
object,  animate  or  inanimate,  on  the  track, 
and  hurl  it  against  them,  such  a  consequence 
is   so   highly   improbable  that  it   suggests   no 
sense  of  danger.     They  feel  as  secure  as  if 
in  their  homes.     To  them  it  is  no  more  prob- 
able than  that  a  train  at  that  point  will  jump 
the  track   and   run  over  them.     If    such    a 
consequence  as  here  resulted  was  not  nat- 
ural,   probable,    or   foreseeable    to    anybody 
else,   should  defendant,  under  the  rule  laid 
down  in  Hoag  v.   Railroad  Co.,   be  charge- 
able with  the  consequence?     Clearly,  it  was 
not   the    natural  and  probable   consequence 
of  its  neglect  to  give  warning,  and  therefore 
was  not  one  which  it  was  bound  to  foresee. 
The  injury,  at  most,  was  remotely  possible,  as 
distinguished  from  the  natural  and  probable 
consequences  of  the  neglect  to  give  warning. 
As  is  said  in  Railroad  Co.  v.  Trich,  117  Pa. 
St.   399,    11   Atl.    627:     "Responsibilhy    does 
not  extend  to  eveiy  consequence  which  may 
possibly  result  from  negligence."     What  we 


have  said  thus  far  is  on  the  assumption  the 
accident  was  caused  solely  by  the  negli- 
gence of  defendant,  or  by  the  concurring  neg- 
ligence of  defendant  and  the  one  killed  go- 
ing upon  the  track  with  a  locomotive  in  full 
vicAv.  This  being  an  action  by  an  inno- 
cent third  person,  he  cannot  be  deprived  of 
his  remedy  because  his  injury  resulted  from 
the  concurrent  negligence  of  two  others.  He 
fails  because  his  injury  was  a  consequence 
so  remote  that  defendant  could  not  reason- 
ably foresee  it. 

But  there  is  another  view  which  may  be 
taken  of  this  evidence.     Assuming   defend- 
ant was  negligent,  did  that  negligence  con- 
tribute  In  any   degree   to   the   result?     The 
uncontradicted    evidence    showed    the    train 
could  be  seen  from  150  to  200  yards  distant. 
Plaintiff  liimself  testiUes  he  heard  it  coming, 
although  he  heard  no  whistle  or  bell;    and 
all    his    witnesses   had    notice   of    it.     Even 
those  sitting  in  the  waiting  room  got  up  to 
go  out,  supposing  it  was  their  train.     Some 
heard   the   rumbling;     some   saw   the   head- 
light.    Assume,  then,  the  fact  to  be  that  no 
warning  was  given  by  bell  or  Avhistle,  and  in 
that  particular  defendant,  in  its  general  duty 
to  the  public,   was  negligent,   was  this   tlie 
cause  of  the  injury?     To  so  find,  we  must 
presume   the   deceased    and   her   companion 
failed  to  hear  or  see  what  all  the  others  saw 
or  heard.     There  is  no  reason  for  such  pre- 
sumption.    While,  in  the  absence  of  any  ev- 
idence   on    the    question,    the    presumption 
would  be  that  the  two  women,  before  cross- 
ing, stopped,  looked,  and  listened,  and  then, 
because  no  warning  was  given,  they,  with- 
out   apprehension   of   danger,    attempted    to 
cross,  still,  when  all  the  other  witnesses  with 
like  opportunity  either  saw  the  headlight  or 
heard  the  rumbling  of  the  approaching  train, 
the  reasonable  presumption  is  they  saw  and 
heard  it  too.     If  this  be  so,  they  attempted 
to   cross   with  the  same  knowledge   of   the 
same  peril  they  would  have  had  if  the  bell 
had  been   rung  and  whistle  blown.     There- 
fore the  sole  cause  of  the  injury  was  not  the 
negligence  of  defendant,  but  the  negligence 
of  deceased.     In  such  case  there  could  have 
been  no  recovery  by  the  representatives  of 
the  deceased   woman,   for,   Avhatever  might 
have  been   the   negligence  of   defendant,    it 
was  no  more  the  cause  of  the  accident  than 
if  it  had  neglected  to  give  warning  at  some 
other    crossing.     The    case    could    not    have 
reached  the  jury  unless  they  had  been  per- 
mitted   to    infer   she    had    neither   seen   nor 
heard  the  same  warnings  that  all  plaintiff's 
witnesses  saw'  and  heard.    If  the  companion 
of  decensed,  or  other  witnesses,  had  testified 
they  neither  saw  nor  heard  the  approaching 
train,  the  case  would  have  been  altogether 
different;  but,  as  it  stood,  there  was  no  proof 
that    the    alleged    negligence    of    defendant 
contributed  to  the  death  of  the  woman.     In 
this  view  the  negligence  was  not  even  con- 
cin-rent.     True,     there    was     negligence,     but 
the  same  result  'followed  as  if  defendant  had 


188 


DIEEOT  AND  CONSEQUENTIAL  DAMAGES-IN  TORT. 


exercised  care.  Therefore  the  injury  was 
attributable  to  her  sole  negligence.  While 
the  proper  warning  on  approaching  a  cross- 
ing is  the  sound  of  a  whistle  or  the  ringing 
of  a  bell,  no  accident  can  be  properly  said  to 
be  the  consequence  of  the  neglect  to  give 


such  warning  if  the  public  be  apprised  of 
the  danger  by  other  sounds  or  signals.  The 
injury  then  is  caused  solely  by  the  neglect  of 
the  injured  person  to  heed  the  danger. 

On  both  grounds  we  think  the  nonsuit  was 
properly  entered.     The  judgment  is  affirmed. 


U 


"7 


DIRECT  AND  CONSEQUENTIAL  DAMAGES-IN  TORT. 


189 


GILSON  V.  DI?LAWARE  &  H.  CANAL  CO. 

(26  Atl.  70,  G5  Vt.  213.) 

Suiironie  Court  of  Veriiiout,  General  Term. 
Dec.  22,  1892. 

Exceptions  ivom  Rutland  county  court; 
Thompson,  Judge. 

Action  by  E.  P.  Gilson,  receiver,  against  the 
Delaware  &  Hudson  Canal  Company,  to  re- 
cover damages  for  the  diversion  of  a  water 
course,  whereby  plaintiff's  quarry  was  flood- 
ed. Judgment  was  entered  in  favor  of  plain- 
tiff, and  defendant  excepts.  Judgment  af- 
firmed. 

The  plaintiff  brought  suit  as  the  receiver 
of  the  Dorset  Marble  Company.  His  evi- 
dence tended  to  prove  that  the  defendant  had, 
by  the  construction  of  its  railroad  embank- 
ment, diverted  an  ancient  water  course  from 
its  accustomed  channel  into  his  quarry,  and 
had  also  collected  and  discharged  surface 
Avater  into  said  quarry.  The  railroad  of  the 
defendant,  at  the  point  complained  of,  was 
constructed  In  1SS4,  along  a  steep  hillside.  At 
one  point  there  had  been  for  many  years  a 
water  course  which  drained  at  certain  seasons 
of  the  year  a  considerable  territory,  but  which 
during  a  considerable  portion  of  the  year  was 
entirely  dry.  From  the  point  w^here  this 
water  course  crossed  the  line  of  the  defend- 
ant's railroad  the  land  gradually  descended 
towards  the  quarry  of  the  plaintiff.  In  con- 
structing its  railroad  the  defendant  made  no 
provision  for  the  passage  of  the  water  running 
in  this  water  course  underneath  its  track,  and 
the  complaint  of  the  plaintiff  was  that  the  de- 
fendant had  thereby  diverted  this  Avater 
course,  and  discharged  it,  together  with  the 
surface  Avater  which  was  collected  by  this 
embankment,  into  his  quarry.  The  land,  at 
the  point  where  the  water  course  crossed  the 
line  of  the  defendant's  railroad,  belonged  to 
the  Vermont  Marble  Company,  as  did  the 
land  between  that  point  and  the  plaintiff's 
quarry.  LTpon  this  land  of  the  Vermont  Mar- 
ble Company,  and  In  close  proximity  to  the 
defendant's  quarry,  were  two  abandoned 
quarries,  OAvned  by  said  Vermont  Marble 
Company,  and  these  abandoned  quarries  were 
partially  filled  Avith  water  at  all  times.  The 
effect  of  the  defendant's  embankment,  as 
constructed,  was  to  deflect  whatever  water 
ran  in  the  water  course  and  whatever  sur- 
face water  ran  down  the  sidehill,  and  to  con- 
duct it  along  the  side  and  into  the  first  of 
these  abandoned  quarries.  When  this  quar- 
ry became  filled  with  water  the  water  Avould 
overfloAv  into  the  second  abandoned  quarry, 
which  lay  adjacent  to  the  quarry  of  the 
plaintiff.  This  quarry  was  separated  from 
the  iilaintiff's  quarry  by  what  appeared  to  be 
a  solid  wall  of  rock,  and  this  dividing  wall 
rose  to  such  a  height  upon  the  surface  that 
the  water  Avould  floAv  over  the  track  of  the 
defendant  before  passing  into  the  quarry  of 
the   plaintiff.      From   the   depression   around 


the  first  abandoned  quarry  a  culvert  Avas 
constructed  underneath  the  defendant's  track. 
The  claim  of  the  defendant  was  that  this 
culvert  Avas  suflicient  to  carry  off  the  Avater 
Avhich  Avas  conducted  as  above  described  in- 
to the  first  abandoned  quarry,  and  there  was 
no  question  but  Avhat  it  had  proved  suificient 
from  1884,  Avhen  the  embankment  was  con- 
structed, down  to  the  time  of  the  injury.  In 
January,  1888,  occurred  a  freshet  Avhich  the 
Avituesses  described  as  the  most  serious 'ever 
knoAvn  in  that  locality.  In  the  course  of  this 
freshet  large  quantities  of  water  ran  down 
the  hillside,  were  turned  by  the  defendant's 
embankment,  and  discharged  into  the  fii-st 
abandoned  quarry.  This  quarry  Avas  filled 
up  by  the  unusual  flood  of  Avater,  and  there- 
upon the  water  overfloAved  into  the  second 
abandoned  quarry,  rising  in  that  quarry 
to  a  point  considerably  above  that  at  Avhich 
it  ordinarily  stood.  From  this  quarry  it 
burst  through  the  dividing  Avail  which  sepa- 
rated it  from  the  plaintiff's  quarry,  Avhereby 
the  damage  complained  of  was  done.  The 
evidence  of  the  defendant  tended  to  show 
that  the  ancestors  of  the  plaintiff,  at  some 
time  previous  to  the  construction  of  the  de- 
fendant's railroad,  had,  in  the  excaA^ation  of 
the  plaintiff's  quarry,  encroached  some  8 
or  10  feet  upon  the  lands  of  the  Vermont 
INIarble  Company,  and  thereby  so  weakened 
the  dividing  Avail  that  it  had  burst  through 
under  the  pressure  of  the  water.  The  de- 
fendant claimed  that  if  the  ancestors  of  the 
plaintiff  had  trespassed  upon  the  lands  of 
the  Vermont  Marble  Company,  and  in  so  do- 
ing so  weakened  the  dividing  AA'all  as  to  oc- 
casion the  injury  in  question,  the  plaintiff 
could  not  recoA-er,  and  requested  the  court 
to  so  instruct  the  jury.  This  the  court  de- 
clined to  do,  and  instructed  the  jury  that, 
in  determining  the  issue  involved,  it  was  im- 
material whether  the  plaintiff's  ancestors 
had  or  had  not  Avorked  over  onto  the  land  of 
the  Vermont  Marble  Company,  and  that,  if 
they  had,  it  would  be  no  defense  to  this  ac- 
tion, to  which  the  defendant  excepted. 


F.     G.     Swinington,    for    plaintiff.     C. 
Prouty,  for  defendant. 


A> 


ROWICLL,  J.  It  is  a  maxim  of  the  law 
that  the  immediate,  not  the  remote,  cause 
of  an  event  is  regarded.  In  the  application 
of  this  maxim,  the  law  rejects,  as  not  con- 
stituting ground  for  an  action,  damage  not 
flowing  proximately  from  the  act  complained 
of.  In  other  words,  the  law  always  refers 
the  damage  to  the  proximate,  not  the  remote, 
cause.  It  is  laid  doAvn  in  many  cases  and  by 
leading  text  writers  that,  in  order  to  war- 
rant a  finding  that  negligence  or  an  act  not 
amounting  to  wanton  AA-rong  is  the  proxi- 
mate cause  of  an  injury,  it  must  appear  that 
the  injury  was  the  natural  and  probable  se- 
quence of  the  negligence  or  the  wrongful  act, 
and  that  it  was  such  as  might  or  ought  to 
haA'e  been  foreseen  in  the  light  of  the  attend- 


190 


DIKECT  AND  COrsSEQUENTIAL   DAMAGES-IN   TORT. 


iug  circumstances;  but  this  rule  is  no  test 
in  cases  wliere  no  intervening  efficient  cause 
is  found  between  the  original  wrongful  act 
and  the  injurious  consequences  complained 
of,  and  in  which  such  consequences,  although 
not  probable,  have  actually  flowed  in  un- 
l)roken  sequence  from  the  original  wrongful 
act.  This  is  well  illustrated  by  Stevens  v. 
Dudley,  56  Vt.  158,  which  was  this:  Defend- 
ant was  a  marshal  at  the  fair,  and,  in  chain- 
ing the  track  for  a  race,  he  turned  off  a 
man's  team  so  negligently  that  the  man  was 
thrown  from  his  wagon,  his  horse  broke 
loose,  and  ran  against  plaintiff's  wagon,  and 
injured  him.  The  court  below  charged  that 
defendant  was  not  liable  unless  he  might 
reasonably  have  expected  plaintiff's  injury 
to  result  from  his  act.  Held  error,  and  that 
the  court  should  have  charged  that  if  the  de- 
fendant negligently  turned  the  team  off  the 
track,  and  thereby  the  team  was  deprived  of 
the  control  of  a  driver,  and  became  fright- 
ened, and  ran  over  plaintiff's  team,  and  caus- 
ed the  injury,  without  any  superior,  uncon- 
trollable force,  or  without  the  negligence  of 
a  responsible  agent,  having  intervened,  the 
defendant  would  be  liable,  although  he  did 
not  anticipate,  and  might  not  have  anticipat- 
ed, such  consequences  from  his  negligent  act; 
in  other  words,  that  the  court  should  Jiave 
charged  that  if  defendant's  act  was  negli- 
gent, and  in  the  natural  order  of  cause  and 
effect  the  plaintiff"  was  injured  thereby,  the 
defendant  was  liable.  Smith  v.  Railway  Co., 
L.  R.  G  C.  P.  14,  in  the  exchequer  chamber, 
is  to  the  same  effect.  There  the  company's 
workmen,  after  cutting  the  grass  and  trim- 
ming the  hedges  bordering  the  railway, 
placed  the  trimmings  in  heaps  between  the 
hedge  and  the  line,  and  allowed  them  to  re- 
main there  for  several  days  during  very  dry 
weather,  which  had  continued  for  some 
weeks.  A  fire  broke  out  between  the  hedge 
and  the  rails,  and  burned  some  of  the  heaps 
of  trimmings  and  the  hedge,  and  spread  to  a 
stubble  field  beyond,  and  was  thence  car- 
ried by  a  high  wind  across  the  stubble  field 
and  over  a  road,  and  burned  plaintiff's  cot- 
tage. 200  yards  away  from  where  the  fire 
began.  There  was  evidence  that  an  engine 
had  passed  the  spot  shortly  before  the  fire 
was  first  seen,  but  no  evidence  that  it  had 
emitted  sparks,  nor  any  fiu'ther  evidence 
that  the  fire  originated  from  the  engine;  nor 
was  there  any  evidence  that  the  fire  began 
in  the  heaps  of  trimmings,  and  not  on  the 
parched  ground  around  them.  The  court 
below  held  that  the  plaintiff  could  not  re- 
cover, because  no  reasonable  man  would 
have  foreseen  that  the  fire  would  consume 
the  hedge,  and  pass  across  a  stubble  field, 
and  so  get  to  plaintiff's  cottage,  at  a  dis- 
tance of  200  yards  from  the  railway,  cross- 
ing a  road  in  its  passage.  In  the  exchequer 
chamber.  Chief  Baron  Kelly  said  that  he 
felt  pressed,  at  first,  by  this  view,  because 
he  then  and  still  thought  that  any  reasonable 
man    might    well    have    failed    to    anticipate 


such  a  concurrence  of  circumstances  as  the 
case  presented;  but  that,  on  consideration, 
he  thought  that  was  not  the  true  test  of  de- 
fendant's liability;  that  it  might  be  that  de- 
fendant did  not  anticipate,  and  was  not 
bound  to  anticipate,  that  plaintift''s  cottage 
would  be  burned  as  the  result  of  its  negli- 
gence; but  yet,  if  it  was  aware  that  the 
heaps  were  lying  by  the  side  of  the  rails, 
and  that  it  was  a  dry  season,  and  that,  there- 
fore, by  being  left  there,  the  heaps  were  like- 
ly to  catch  fire,  defendant  was  bound  to  pro- 
vide against  all  circumstances  that  might 
result  from  this,  and  was  responsible  for 
all  natural  consequences  of  it;  and  with 
this  agreed  all  the  judges.  Channell,  B.,  said 
that,  where  there  is  no  direct  evidence  of 
negligence,  the  question  what  a  reasonable 
man  might  foresee  is  of  importance  in  con- 
sidering whether  there  is  evidence  for  the 
jury  of  negligence  or  not;  and  Mr.  Justice 
Blackburn  said  that  what  the  defendant 
might  reasonably  anticipate  was  material 
only  with  reference  to  the  question  wheth- 
er it  was  negligent  or  not,  but  could  not  al- 
ter its  liability  if  it  was  negligent.  In  Ry- 
lands  V.  Fletcher,  L.  R.  3  H.  L.  3.32,  (in  the 
house  of  lords,)  Lord  Cranworth  says  that, 
in  considering  whether  a  defendant  is  liable 
to  a  plaintiff  for  damage  that  the  latter  has 
sustained,  the  question  in  general  is  not 
whether  the  defendant  has  acted  with  due 
care  and  caution,  but  whether  his  acts  occa- 
sioned the  damage;  that  this  is  all  well  ex- 
plained in  the  old  case  of  Lambert  v.  Bessey, 
T.  Raym.  421,  reported  by  Sir  Thomas  Ray- 
mond; that  the  doctrine  is  founded  in  good 
sense,  for  where  one,  in  managing  his  own 
affairs,  causes,  however  innocently,  damage 
to  another,  it  is  obviously  only  just  that  he 
should  be  the  party  to  suffer;  that  he  is 
bound  so  to  use  his  own  as  not  to  injure  an- 
other. In  Smith  v.  Fletcher,  L.  R.  7  Exch. 
305,  defendants'  mines  adjoined  and  com- 
municated with  plaintift"'s  mines,  and  on  the 
surface  of  defendants'  land  were  certain  hol- 
lows and  openings,  partly  caused  by  defend- 
ants' workings,  and  partly  made  to  facilitate 
them.  Across  the  surface  of  defendants' 
land  there  ran  a  brook,  which  they  had  di- 
verted from  its  original  course  into  an  arti- 
ficial channel  they  had  made,  and  which,  by 
reason  of  exceptionally  heavy  rains,  over- 
flowed its  banks,  and  quantities  of  water 
poured  from  it  into  said  hollows  and  open- 
ings, where  already  the  rains  had  caused  an 
unusual  amount  of  water  to  collect,  and 
thence,  through  fissures  and  cracks,  water 
passed  into  defendants'  mine,  and  so  into 
plaintiff's  mine.  If  the  land  had  been  in 
its  natural  condition,  the  water  would  have 
spread  over  the  surface,  and  done  no  harm. 
The  defendants  tendered  evidence  to  show 
that  they  had  taken  every  reasonable  precau- 
tion to  guard  against  ordinary  emergencies, 
and  that  they  had,  by  diverting  and  improv- 
ing the  water  course,  and  otherwise,  greatly 
lessened  the  chance  of  water  escaping  from 


DIRECT  AND   CONSEQUENTIAL   DAMAGES-IN   TORT. 


191 


the  surface  of  the  land  into  their  own  mines, 
<iml  thence  into  the  plaintiff's  mine;  and  con- 
tended that  they  were  not  liable  for  the  con- 
sequences of  an  exceptional  flood.  It  was 
conceded  that  they  had  not  been  guilty  of 
any  personal  negligence;  but  the  court  ruled 
that  they  were  absolutely  liable  for  the  con- 
sequences, and  rejected  the  evidence,  and 
a,  verdict  was  taken  for  the  plaintiff,  which 
was  alloAved  to  stand.  Baron  Bramwell,  in 
disposing  of  the  case  in  banc,  said  that  the 
defendants,  for  their  own  purposes,  and  with- 
out providing  the  means  of  its  getting  away 
without  hurt,  brought  the  water  to  the  place 
whence  it  escaped,  and  did  the  mischief,  and 
that  that  made  a  case  against  them  calling 
for  an  answer,  and  that  they  answered: 
"We  brought  the  water  there,  indeed,  and 
did  not  provide  a  sufficient  outlet  for  it;  but, 
had  we  not  altered  the  original  course  of  the 
stream,  it  would  have  escaped  in  greater 
quantities,  and  done  more  mischief,"— which, 
he  said,  was  no  answer.  See  Cahill  v.  East- 
man, IS  Minn.  324.  (Gil.  292.) 

In  the  ease  at  bar  the  defendant,  for  pur- 
poses of  its  own,  wrongfully  turned  the 
brook  from  its  natural  channel,  and  let  it 
flow  towards  plaintiff's  quarry,  not  know- 
ing what  would  happen,  whereby  large  and 
unusual  quantities  of  water  were  brought 
to  and  accumulated  in  the  marble  compauj-'s 
abandoned  quarries,  and  it  was  the  duty  of 
the  defendants  to  see  that  no  damage  was 
thereby  done;  and  the  fact  that  it  did  not 
know,  and  had  no  reason  to  suspect,  that 
the  plaintiff's  predecessors  had  worked  their 


quarry  out  of  bounds,  and  thereby  weakened 
the  wall  between  it  and  the  adjacent  quarry, 
makes  no  difference,  unless  such  fact  consti- 
tutes contributory  negligence  imputable  to 
the  plaintiff.  Now,  an  act  or  omission  of  a 
party  injured,  or  of  those  for  whose  acts 
and  omissions  he  is  responsible,  in  order  to 
constitute  contributory  negligence,  must  have 
related  to  something  in  respect  of  which  he 
or  they  owed  to  the  defendant,  or  to  those  in 
whose  shoes  he  stands,  the  duty  of  being 
careful,  and  have  been  negligent,  and,  in 
the  production  of  the  injury,  have  operated 
as  a  proximate  cause,  or  as  one  of  the  proxi- 
mate causes,  and  not  have  been  merely  a 
condition.  It  follows,  therefore,  that  when 
there  is  no  duty  there  can  be  no  negligence. 
In  working  their  quarry,  the  plaintiff's  prede- 
cessors did  not  know,  and  could  not  possibly 
anticipate,  the  then  nonexistent  circumstan- 
ces,—that  years  afterwards  the  defendant 
would  build  a  new  road  where  it  did  in  1SS4, 
and  wrongfully  turn  the  brook  into  the  quar- 
ries above,  whereby  their  quarry  would  be 
endangered  if  they  weakened  the  wall  by 
working  out  of  bounds.  Their  act  in  tills 
respect  was  not  wrongful  as  to  the  defend- 
ant, and  they  owed  the  defendant  no  duty 
concerning  it,  and  therefore  negligence  is  not 
predicable  of  it,  even  though  it  was  wrong- 
ful as  to  the  marble  company,  with  the  rights 
of  which  the  defendant  in  no  way  connects 
itself.  The  state  of  the  wall,  legally  consid- 
ered, was  not  a  proximate  cause  of  the  in- 
jury, but  was  merely  a  condition  that  made 
the  injury  possible.     Judgment  affirmed. 


192 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


KEEBLE  V.  KEEBLE. 

(5  South.  149,  85  Ala.  552.) 

Supreme  Court  of  Alabama.     Dec.  8,  1888. 

Appeal  from  city  court,  Dallas  county;  John 
Haralson,  Judge. 

This  was  an  action  brought  by  the  appel- 
lant, Henry  C.  Keeble,  against  the  appellee, 
Julia  P.  Keeble,  as  the  executrix  of  R.  C. 
Keeble,  deceased,  for  the  recovery  of  money 
alleged  to-  be  due  the  plaintiff  by  the  de- 
fendant's testator.  The  defendant  pleaded 
the  general  issue,  payment,  accord  and  satis- 
faction, and  set-olf.  The  only  question  in  the 
case  arose  on  the  instruction  given  the  jury 
by  the  court,  founded  on  the  facts  set  out 
in  the  seventh  plea.  The  demurrer  to  this 
plea  was  overruled  by  the  court.  It  was,  in 
substance,  that  plaintiff  and  defendant's  tes- 
tator had  been  in  partnership  in  the  mercan- 
tile business.  Plaintiff  sold  out  to  defend- 
ant's testator,  but  was  employed  by  the  lat- 
ter as  business  manager.  The  terms  of  the 
employment  imposed  on  plaintiff  the  obliga- 
tion to  wholly  abstain  from  the  use  of  in- 
toxicating liquors,  and,  in  the  event  he  should 
become  intoxicated,  that  he  shovild  pay,  "as 
liquidated  damages,"  the  sum  of  $1,000.  The 
plea  alleged  that  plaintiff  violated  his  promise 
to  keep  sober,  and  thereby  became  bound  to 
pay  to  defendant's  testator  said  sum  of  $1,000, 
which  sum  was  offered  as  a  set-off  to  plain- 
tiff's demand. 

Mr.  Roy  and  White  &  White,  for  appellant. 
Pettus  &  Pettus,  for  appellee. 

SOMERVILLE,  J.  The  only  question  in 
this  case  is  whether  the  sum  of  .'PI.OOO,  agreed 
to  be  paid  by  the  appellant,  Henry  C.  Keeble, 
to  Richard  C.  Keeble,  the  testator  of  the  ap- 
pellee, as  mentioned  in  the  written  contract 
of  employment  between  the  parties,  is  to  be 
regarded  by  the  court  as  a  penalty  or  as 
liquidated  damages.  The  city  court  held  it, 
in  effect,  to  be  liquidated  damages,  by  char- 
ging the  jury  to  find  for  the  defendant,  if 
the  facts  set  out  in  the  seventh  plea  were 
satisfactorily  proved.  The  solution  of  this 
question  is  one  which  the  courts  have  often 
confessed  embarrassment  in  determining.  No 
one  rule  can  be  announced  which  will  fur- 
nish a  single  test  or  criterion  for  all  cases, 
but,  in  most  cases,  a  multitude  of  considera- 
tions are  to  be  regarded  in  seeking  to  reach 
the  real  intention  of  the  parties.  The  follow- 
ing general  rules  may  be  deduced  from  the 
authorities,  each  having  more  or  less  weight, 
according  to  the  peculiar  circumstances  of 
each  case,  and  the  nature  of  the  contract 
sought  to  be  construed:  (1)  The  court  will 
always  seek  to  ascertain  the  true  and  real  in- 
tention of  the  contracting  parties,  giving  due 
weight  to  the  language  or  words  used  in  the 
contract,  but  not  always  being  absolutely  con- 
trolled by  them,  when  the  enforcement  of 
such  contract  operates  with  unconscionable 
hardship,    or    otherwise    works    an    injustice. 


(2)  The  mere  denomination  of  the  sum  to  be 
paid  as  "hquidated  damages,"  or  as  "a  pen- 
alty," is  not  conclusive  on  the  court  as  to 
its  real  character.  Although  designated  as 
"liquidated  damages"  it  may  be  construed  as 
a  penalty,  and  often  when  called  a  "penalty" 
it  may  be  held  to  be  liquidated  damages, 
where  the  intention  to  the  contrary  is  plain. 

(3)  The  courts  are  disposed  to  lean  against 
any  interpretation  of  a  contract  which  will 
make  it  liquidated  damages;  and,  in  all  cases 
of  doubtful  intention,  will  pronounce  the  stip- 
ulated sum  a  penalty.  (4)  Where  the  pay- 
ment of  a  smaller  sum  is  seciu'ed  by  an  obli- 
gation to  pay  a  larger  sum,  it  will  be  held 
a  penaltj^  and  not  liquidated  damages.  (5) 
Where  the  agreement  is  for  the  performance 
or  non-performance  of  a  single  act,  or  of  sev- 
eral acts,  or  of  several  things  Avhich  are  but 
minor  parts  of  a  single  complex  act,  and  the 
precise  damage  resulting  from  the  violation 
of  each  covenant  is  wholly  imeertain  or  in- 
capable of  being  ascertained  save  by  con- 
jecture, the  parties  may  agree  on  a  fixed  sum 
as  liquidated  damages,  and  the  courts  will 
so  construe  it,  unless  it  is  clear  on  other 
grounds  that  a  penalty  was  really  intended. 
(6)  When  the  contract  provides  for  the  per- 
formance of  several  acts  of  different  degrees 
of  importance,  and  the  damages  restilting 
from  the  violation  of  some,  althougli  not  all, 
of  the  provisions  are  of  easy  ascertainment, 
and  one  large  gross  sum  is  stipulated  to  be 
paid  for  the  breach  of  any,  it  will  be  con- 
strued a  penalty,  and  not  as  liquidated  dam- 
ages. (7)  When  the  agreement  provides  for 
the  performance  of  one  or  more  acts,  and  the 
stipulation  is  to  pay  the  same  gross  sum  for 
a  partial  as  for  a  total  or  complete  breach  of 
performance,  the  sum  will  be  construed  to 
be  a  penalty.  (8)  Whether  the  sum  agreed 
to  be  paid  is  out  of  proportion  to  the  actual 
damages,  which  will  probably  be  sustained 
by  a  breach,  is  a  fact  into  which  the  court 
will  not  enter  on  inquu-y,  if  the  intent  is  other- 
wise made  clear  that  liquidated  damages,  and 
not  a  penalty,  are  in  contemplation.  (9)  Where 
the  agreement  is  in  the  alternative,  to  do  one 
of  two  acts,  but  is  to  pay  a  larger  sum  of 
money  in  the  one  event  than  in  the  other, 
the  obligor  having  his  election  to  do  either, 
the  amount  thus  agreed  to  be  paid  will  be 
held  liquidated  damages,  and  not  a  penalty. 
(10)  In  applying  these  rules,  the  controlling 
purpose  of  which  is  to  ascertain  the  real  in- 
tention of  the  parties,  the  court  will  consider 
the  nature  of  the  contract,  the  terms  of  the 
whole  instrtiment,  the  consequences  naturally 
resulting  from  a  breach  of  its  stipulations, 
and  the  peculiar  circumstances  surrotmding 
the  transaction;  thus  permitting  each  case  to 
stand,  as  far  as  possible,  on  its  own  merits 
and  peculiarities.  These  rules  are  believed 
to  be  sustained  by  the  preponderance  of  ju- 
dicial decisions.  Graham  v.  Bickham,  1  Am. 
Dec.  328,  and  note,  pp.  331-340;  Williams  v. 
Vance,  30  Am.  Rep.  26.  and  note.  pp.  28-36; 
1   Pom.   Eq.  Jur.   §§  44U-4iG;    McPherson   v. 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


103 


Robertson,  82  Ala.  459,  2  South,  .sn:?:  Hooper 
V.  Railroad  Co.,  69  Ala.  ."29:  'Watts  v.  Sliep- 
panl,  2  Ala.  425:  Bisli.  Coiit.  §  14.52;  Curry 
V.  Laror,  7  Pa.  St.  470;  Foley  v.  McKeegau, 
4  Iowa,  1;  Nash  v.  Hcnnosilla,  9  Cal.  584; 
Muse  V.  Swayne,  2  Lea.  251;  2  Greeul.  Ev. 
§  258. 

The  appellant  Avas  in  the  einployment  of  the 
api)ellee's  testator  as  a  business  manager,  at 
very  liberal  wages,  having  been  a  partner 
Avith  him  in  the  mercantile  business,  under 
the  firm  name  of  R.  C.  Keeble  &  Co.  Al- 
though he  was  but  an  employe,  having  sold 
to  R.  C.  Keeble  his  entire  interest  in  the  part- 
nership business,  he  remained  ostensibly  a 
j)artner.  The  terms  of  the  employment,  re- 
duced to  writing,  imposed  on  the  appellant, 
Henry  Keeble,  the  obligation,  among  other 
duties,  "to  Avholly  abstain  from  the  use  of 
intoxicating  liquors."  and  "to  continue  and  re- 
main sober,"  giving  his  diligent  attention  to 
the  business  of  his  employer,  and  promising, 
in  the  event  he  should  become  intoxicated, 
that  he  would  pay,  "as  liquidated  damages," 
the  sum  of  !i;i,000,  which  the  testator,  Rich- 
ard Keeble.  Avas  authorized  to  retain  out  of 
a  certain  debt  he  owed  the  appellant.  The 
appellant  violated  his  promise  by  becoming 
intoxicated,  and  remained  so  for  a  long  time, 
and  acted  rudely  and  insultingly  towards  the 
customers  and  employes  of  the  testator,  and 
otherAvise  deported  himself,  by  reason  of  in- 
toxication, in  such  manner  as  to  do  injury  to 
the  business.  It  is  not  denied  by  appellant's 
counsel  that  this  is  a  total  breach  of  the  prom- 
ise to  keep  sober;  nor  is  it  argued  that  the 
damage  resulting  from  the  violation  of  such  a 
promise  can  be  ascertained  Avith  any  degree  of 
certainty;  nor  even  that  the  amount  agreed 
to  be  paid  as  liquidated  damages,  in  the  event 
of  a  breach,  is  disproportionate  to  the  dam- 
ages Avhich  may  have  been  actually  sustained 
in  this  case.  But  the  contention  seems  to  be 
that,  inasmuch  as  it  Avas  possible  for  a  breach 
to  occur  Avith  no  actual  damages  other  than 
nominal,  the  amount  agreed  to  be  paid  should 
be  construed  to  be  a  penalty.  Unless  this 
A'iew  is  correct,  the  application  .of  the  fore- 
going rules  to  the  construction  of  the  agree- 
ment manifestly  stamps  it  as  a  stipulation 
for  liquidated  damages,  and  not  a  penalty. 
It  is  argued,  in  other  words,  that  becoming 
intoxicated  in  private,  Avhile  otT  duty,  would 
be  a  A'iolation  of  the  contract,  but  Avould  be 
attended  Avith  no  actual  damage  to  the  busi- 
ness of  R.  C.  Keeble  &  Co.  This  fact  AA'ould, 
in  our  opinion,  except  the  case  from  the  oper- 
ation of  the  rules  above  enunciated.  There 
are  but  fcAV  agreements  of  this  kind  AA'here 
the  stipulation  is  to  do  or  not  do  a  particular 
act,  in  Avhich  the  damages  may  not,  accord- 
ing to  circumstances,  vary,  on  a  sliding  scale, 
from  nominal  damages  to  a  considerable  sum. 
One  may  sell  out  the  good-Avill  of  his  busi- 
ness in  a  given  locality,  and  agree  to  abstain 
from  its  further  prosecution,  or.  in  the  event 
of  his  breach  of  his  agreement,  to  pay  a  cer- 
LAW  DAM.2d  Ed.— 13 


tain  sum  as  liquidated  damages;  as,  for  ex- 
ample, not  to  practice  one's  profession  as  a 
physician  or  laAvyer,  not  to  run  a  steam-boa  I 
on  a  certain  river  or  to  carry  on  the  hotel 
business  in  a  particular  toAvn,  not  to  re-estab- 
lish a  ncAA'spaper  for  a  given  period,  or  to 
carrj^  on  a  particular  branch  of  l)usiness  Avlth- 
in  a  certain  distance  from  a  named  city.  In 
all  such  cases,  as  often  decided,  it  is  compL-- 
tent  for  the  parties  to  stipulate  for  the  pay- 
ment of  a  gross  sum  by  Avay  of  liquidated 
damages  for  the  violation  of  the  agreement, 
and  for  the  A^ery  reason  that  such  damages 
are  uncertain,  fluctuating,  and  incapable  of 
easy  ascertainment.  Williams  v.  Vance,  30 
Am.  Rep.  29-31,  note;  Graham  y.  Bickham,  1 
Am.  Doc.  33G-33S,  note;  1  Pom.  p:q.  Jur. 
§  442,  note  1.  It  is  clear  that  each  of  these 
various  agreements  may  be  Aiolated  by  a  sub- 
stantial breach,  and  yet  no  damages  might 
accrue  except  such  as  are  nominal.  The 
obligor  may  practice  medicine,  and  possibly 
never  interfere  with  the  practice  of  the  other 
contracting  party;  or  laAA',  Avithout  having  a 
paying  client;  or  he  may  run  a  steam-boat 
Avithout  a  passenger;  or  an  hotel  Avithout  a 
guest;  or  carry  on  a  ucAvspaper  Avithout  the 
least  injury  to  any  competitor.  But  the  law 
AA'ill  not  enter  upon  an  iuA-estigation  as  to  the 
quantum  of  damages  in  such  cases.  This  is 
the  very  matter  settled  by  the  agreement  of 
the  parties.  If  the  act  agreed  not  to  be  done 
is  one  from  Avhich,  in  the  ordinary  course  of 
events,  damages,  incapable  of  ascertainment 
save  by  conjecture,  are  liable  naturally  to  fol- 
low, sometimes  more  and  sometimes  less,  ac- 
cording to  the  aggravation  of  the  act,  the 
court  Avill  not  stop  to  investigate  the  extent  ot 
the  grievance  complained  of  as  a  total  breach, 
but  Avill  accept  the  sum  agreed  on  as  a  proper 
and  just  measurement,  by  way  of  liquidated 
damages,  unless  the  real  intention  of  the  par- 
ties, under  the  rules  above  announced,  de- 
signed it  as  a  penalty.  We  may  add,  more 
over,  that  no  one  can  accurately  estimate  the 
physiological  relation  betAveen  private  and 
public  drunkenness,  nor  the  causal  connec- 
tion botAA-een  intoxication  one  time  and  a  score 
of  times.  The  latter,  in  each  instance,  may 
folloAV  from  the  former,  and  the  one  may 
naturally  lead  to  the  other.  There  Avould 
seem  to  be  nothing  harsh  or  unreasonable  in 
stipulating  against  the  very  source  and  be- 
ginning of  the  more  aggravated  evil  sought  to 
be  aA'oided.  The  duty  resting  on  the  court, 
in  all  these  cases,  is  to  so  apply  the  settled 
rules  of  construction  as  to  ascertain  the  legal- 
ly expressed  and  real  intention  of  the  parties. 
Courts  are  under  no  obligations,  nor  have  they 
the  power,  to  make  a  Aviser  or  better  contract 
for  either  of  the  parties  than  he  may  be  sup- 
posed to  have  made  for  himself.  The  court 
below,  in  our  judgment,  did  not  err  in  hold- 
ing, as  it  did,  by  its  rulings,  that  the  sum 
agreed  to  be  paid  the  appellee's  testator  AA-as 
liquidated  damages, -and  not  a  penalty.  Af- 
firmed. 


194 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


MONMOUTH  PARK  ASS'N  v.  WALLIS 
IRON  AVORKS. 

(26  Atl.  140;  55  N.  J.  Law,  132.) 

Court  of  Errors  and  Appeals  of  New  Jersey. 
March  6,  1893. 

Error  to  supreme  court. 

Action  on  a  contract  by  the  Monmouth 
Park  Association  against  the  Wallis  Iron 
Worlis.  Plaintiff  had  judgment,  and  defend- 
ant brings  error.     Reversed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  DIXON,  J.: 

The  plaintiff  brought  an  action  in  the  su- 
preme court  against  the  defendant  to  re- 
cover $6,3S4.G6,  and  interest,  as  a  final  bal- 
ance for  work  done,  chiefly,  under  a  sealed 
contract  between  them,  providing  for  the 
construction  of  a  grand  stand  at  the  Mon- 
mouth Park  race  course.  The  present  writ 
of  error  is  prosecuted  by  the  defendant  to 
review  questions  of  law  raised  at  the  trial  in 
tbe  Hudson  circuit.  The  following  is  a  copy 
of  the  contract: 

"Articles  of  agreement  made  and  concluded 
this  first  day  of  October,  A.  D.  1SS9,  by  and 
between  the  Wallis  Iron  Works,  a  corpora- 
tion of  New  Jersey,  of  the  first  part,  and  the 
Monmouth  Park  Association,  of  the  second 
part,  witnesseth,  that  for  and  in  considera- 
tion of  the  covenants  and  payments  herein- 
after mentioned,  to  be  made  and  performed 
by  the  said  party  of  the  second  pait,  the  said 
party  of  the  first  part  doth  hereby  covenant 
and  agree  to  furnish  all  the  labor  and  ma- 
terials, and  perform  the  work,  necessary  to 
complete,  in  the  most  substantial  and  work- 
manlike manner,  to  the  satisfaction  and  ac- 
ceptance of  the  chief  engineer  of  the  said 
party  of  the  second  part,  a  grand  stand  at 
the  race  course  of  said  party  of  the  second 
part,  at  Monmouth  Park,  Monmouth  Co.,  New 
Jersey,  excepting  the  necessary  excavation, 
incidental  thereto;  tbe  said  work  to  be  fin- 
ished as  described  in  the  approved  plans  and 
following  specifications,  and  agreeably  to 
the  directions  received  from  the  said  chief  en- 
gineer, on  or  before  the  first  day  of  March, 
1890.  In  case  the  said  party  of  the  first  part 
shall  to  fully  and  entirely,  and  in  conformity 
to  the  provisions  and  conditions  of  this  agi-ee- 
ment,  perform  and  complete  the  said  work, 
and  each  and  every  part  and  appurtenance 
thereto,  within  the  time  hereinbefore  limited 
for  such  performance  and  completion,  or 
within  such  further  time  as,  in  accordance 
with  the  provisions  of  this  agreement,  shall 
be  fixed  or  allowed  for  such  performance  and 
completion,  the  said  party  of  the  first  part 
shall  and  will  pay  to  the  said  party  of  the 
second  part  the  sum  of  one  hundred  dollars 
for  each  and  every  day  that  they,  the  said 
party  of  the  first  part,  shall  be  in  default, 
which  said  sum  of  one  hundred  dollars  per 
day  is  hereby  agreed  upon,  fixed,  and  deter- 
mined by  the  parties  hereto  as  the  dam- 
ages which  the  party  of  the  second  part  will 
suffer  by  reason  of  such  default,  and  not  by 


way  of  penalty.  And  the  said  party  of  the 
second  part  may  and  shall  deduct  and  retain 
the  same  out  of  any  moneys  which  may  be 
due  or  become  due  to  the  party  of  the  first 
part  under  this  agreement. 

"Specification.  The  entire  work  to  be  con- 
structed and  finished,  in  every  part,  in  a 
good,  substantial,  and  workmanlike  manner, 
according  to  the  accompanying  drawings  and 
specifications,  to  the  full  extent  and  mean- 
ing of  the  same,  and  to  the  entire  satisfaction, 
approval,  and  acceptance  of  the  chief  en- 
gineer and  owners  of  the  said  party  of  the 
second  part,  and  under  the  supervision  and 
direction  of  such  agent  or  agents  as  they 
may  appoint.  Additional  detail  and  working 
drawings  will  be  furnished,  in  exemplification 
of  the  foregoing,  from  time  to  time,  as  may 
be  required;  and  it  is  distinctly  understood, 
that  all  such  additional  drawings  are  to  be 
considered  as  virtually  embraced  within,  and 
forming  a  part  of,  these  specifications.  Fig- 
ured dimensions  shall  in  all  cases  be  taken 
in  preference  to  scale  measurements.  The 
said  engineer  shall  have  the  right  to  make 
any  alterations,  additions,  or  omissions  of 
work  or  materials  herein  specified,  or  shown 
on  the  drawings,  during  the  progress  of  the 
structure,  that  he  may  find  to-  be  necessary, 
and  the  same  shall  be  acceded  to  by  the  said 
party  of  the  first  part,  and  carried  into  ef- 
fect, without  in  any  way  violating  or  vitiat- 
ing the  contract.  If  any  additions,  altera- 
tions, or  omissions  are  made  in  the  struc- 
ture during  the  progress  of  the  v\^ork,  the 
value  of  such  shall  be  decided  by  the  said 
chief  engineer,  who  shall  make  an  equitable 
allowance  for  the  same,  and  shall  add  the 
amount  of  said  allowance  to  the  contract 
price  of  the  work,  if  the  cost  has  been  in- 
creased, or  shall  deduct  the  amount,  if  the 
cost  has  been  lessened,  as  he,  the  said  chief 
engineer,  may  deem  just  and  equitable.  The 
said  party  of  the  second  part  will  pay  for  no 
extra  work  or  material  unless  ordered  in 
writing  by  them,  through  their  treasurer. 
Any  disagreement  or  difference  between  the 
parties  to  this  contract,  upon  any  matter  or 
thing  arising  from  these  specifications,  or  the 
drawings  to  which  they  refer,  or  to  the  con- 
tract for  the  work,  or  the  kind  or  quality  of 
the  work,  required  thereby,  shall  be  decid-ed 
by  the  said  chief  engineer  of  the  party  of 
the  second  part,  whose  decision  and  inter- 
pretation of  the  same  shall  be  considered 
final,  conclusive,  and  binding  upon  both  par- 
ties. All  materials  and  labor  used  through- 
out the  structure  must  be  of  the  best  of  their 
several  kinds,  and  subject  to  the  approval  of 
the  chief  engineer.  The  said  chief  engineer 
shall  have  full  power,  at  any  time  during  the 
progress  of  the  work,  to  reject  any  materials 
that  he  may  deem  unsuitable  for  the  purpose 
for  which  they  were  intended,  or  which  are 
not  in  strict  conformity  with  the  spirit  of 
these  specifications.  He  shall  also  have  the 
power  to  cause  any  inferior  or  unsafe  work 
to   be  taken  down  and  altered  at  the   cost 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


195 


•of  the  said  party  of  the  first  part.  Partic- 
ular care  must  be  taken  of  all  the  finished 
work,  which  work  must  be  covered  up  and 
thoroughly  protected  from  injury  or  deface- 
ment, during  the  erection  and  completion  of 
the  structure.  All  refuse  material  and  rub- 
bish that  may  accunuilate  during  the  prog- 
ress of  the  work  shail  be  removed  from 
time  to  time  as  may  be  directed  by  the  chief 
engineer,  and,  on  the  completion  of  the  Avork, 
the  structure,  grounds,  aud  streets  be  thor- 
oughly cleaned  up,  aud  the  surplus  material 
and  rubbish  removed.  The  said  party  of  the 
second  part  will  not  transport  free  any  of  the 
workmen  or  materials  for  this  work,  but  all 
materials  must  be  shipped  in  the  name  of  the 
party  of  the  first  part,  and  in  no  case  shall 
it  be  shipped  in  care  of,  or  in  the  name  of, 
the  company,  or  any  of  its  officers  or  em- 
ployes, and  said  party  of  the  first  part  must 
pay  the  regular  freight  rates  arranged  for 
with  the  freight  department. 

"And  the  said  party  of  the  second  part 
doth  promise  aud  agree  to  pay  to  the  said 
party  of  the  first  part,  for  the  work  to  be 
done  under  this  contract,  the  following  prices, 
to  wit:  One  hundred  aud  thirty-three  thou- 
sand (.$133,000)  dollars.  On  or  about  the  last 
day  of  each  month,  during  the  progress  of 
this  work,  an  estimate  shall  be  made  of  the 
relative  value  of  the  work  done  and  deliver- 
ed, to  be  judged  by  the  engineer;  and  ninety 
per  cent,  of  the  amount  of  said  estimate  shall 
be  paid  to  the  party  of  the  first  part  on  or 
about  the  fifteenth  day  of  the  following 
month.  And  when  all  the  work  embraced  in 
this  contract  is  completed,  agreeably  to  the 
specifications,  and  in  accordance  with  the 
directions,  and  to  the  satisfaction  and  ac- 
ceptance, of  the  engineer,  there  shall  be  a 
final  estimate  made  of  said  work  according 
to  the  terms  of  this  agreement,  when  the  bal- 
ance appearing  due  to  the  said  party  of  the 
first  part  shall  be  paid  to  them,  within  thirty 
days  thei-eafter,  upon  their  giving  a  release, 
under  seal,  to  the  party  of  the  second  part, 
from  all  claims  and  demands  whatsoever 
growing  in  any  manner  out  of  this  agreement, 
and  upon  their  procm-ing  and  delivering  to 
the  parties  of  the  second  part  full  releases,  in 
proper  form,  and  duly  executed,  from  me- 
chanics and  material  men,  of  all  liens,  claims, 
and  demands  for  materials  furnished  and 
provided,  and  work  aud  labor  done  and  per- 
formed, upon  or  about  the  work  herein  con- 
tracted for  under  this  contract.  It  is  fur- 
ther covenanted  and  agreed  between  the  said 
parties  that  the  said  party  of  the  first  part 
will  at  all  times  give  personal  attention,  by 
coiupetent  representative,  who  shall  superin- 
tend the  work.  It  is  further  agreed  that  the 
contractors  are  not  to  interfere  in  any  way 
with  the  construction  of  the  bookmakers' 
stand,  members'  stand  or  the  paddocks,  or 
other  work.  It  is  further  agreed  and  under- 
stood that  the  work  embraced  in  this  con- 
tract shall  be  commenced  within  ten  days 
from   this   date,    and   prosecuted   with   such 


force  as  the  engineer  shall  deem  adequate 
to  its  completion  within  the  time  specified; 
and  if  at  any  time  the  said  party  of  the  first 
part  shall  refuse  or  neglect  to  prosecute  the 
work  with  a  force  sufficient,  in  the  opinion 
of  the  said  engineer,  for  its  completion  with- 
in the  time  specified  in  this  agreement,  then, 
in  that  case,  the  said  engineer  in  charge,  or 
such  agents  as  the  engineer  shall  designate, 
may  proceed  to  employ  such  a  number  of 
workmen,  laborers,  aud  overseers  as  may, 
in  the  opinion  of  the  said  engineer,  be  neces- 
sary to  insure  the  completion  of  the  work 
within  the  time  hereinbefore  limited,  at  such 
wages  as  he  may  find  necessary  or  expedient 
to  give,  pay  all  persons  so  employed,  and 
charge  over  the  amount  so  paid  to  the  party 
of  the  first  part  as  for  so  much  money  paid 
to  them  on  said  contract,  or  for  the  failure 
to  prosecute  the  work  with  an  adequate 
force,  for  noncompliance  with  his  di- 
rections in  regard  to  the  manner  of  con- 
structing, it,  or,  for  any  other  omission  or 
neglect  of  the  requirements  of  this  agree- 
ment and  specifications  on  the  part  of  the 
party  of  the  first  part,  the  said  engineer 
may,  at  his  discretion,  declare  this  contract, 
or  any  portion  or  section  embraced  in  it, 
void.  And  the  said  party  of  the  first  part  hath 
further  coveuanted  and  agreed  to  take,  use, 
provide,  aud  make  all  proper,  necessary,  aud 
sufficient  precautions,  safeguards,  and  pro- 
tections against  the  occurrence  or  happening 
of  any  accident,  injuries,  damages,  or  hurt  to 
any  person  or  property  during  the  progress 
of  the  construction  of  the  work  herein  con- 
tracted for,  and  to  be  responsible  for,  and  to 
indemnify  and  save  harmless,  the  said  par- 
ties of  the  second  part,  and  the  said  engineer, 
from  the  payments  of  all  sums  of  money  by 
reason  of  all  or  any  such  accidents,  injuries, 
damages,  or  hurt  that  may  happen  or  occur 
upon  or  about  said  work,  and  from  all  fines, 
penalties,  and  loss  incurred  for  or  bj'-  reason 
of  the  violation  of  any  city  or  borough  ordi- 
nance or  regulation  or  law  of  the  state,  while 
the  said  work  is  in  progress  of  construction. 
And  it  is  mutually  agreed  and  distinctly  un- 
derstood that  the  decision  of  the  chief  en- 
gineer shall  be  final  and  conclusive  in  any 
dispute  which  may  arise  between  the  par- 
ties to  this  agreement,  relative  to  or  touching 
the  same. 

"In  witness  whereof,  the  parties  herein 
named  have  hereunto  set  their  seals,  and 
caused  their  presents  to  be  signed  by  their 
secretary,  the  day  and  year  herein  first 
above  named.  As  to  Wallis  Iron  Works, 
James  I.  Taylor.  Wallis  Iron  Works.  [Seal.] 
Wm.  T.  Wallis,  Sec'y.  The  Monmouth  Park 
Ass'n.  [Seal.]  By  A.  J.  Cassatt,  President. 
Witness  to  signature  of  A.  J.  Cassatt:  T. 
M.  Croft 

"It  is  hereby  further  agreed  that,  in  addi- 
tion to  the  work  hereinbefore  described  and 
provided  for,  the  said  party  of  the  first  part 
shall  provide  as  bearing  pieces  to  receive 
ends  of  purlins,  and  in  lieu  of  the  angle  irons 


196 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


already  provided  for,  3x0  angle  irons,  10  8-10 
lbs.  per  foot,  and  7  feet  long,  well  bolted  to 
roof  truss  and  to  purlin  ends.  The  party  of 
the  first  part  will  also  coustruct,  complete,  the 
front  steps  to  grand  stand,  as  per  revised 
sheet  No.  2G.  In  consideration  of  the  fore- 
going changes,  the  party  of  the  second  part 
agrees  to  pay  the  additional  sum  of  nineteen 
hundred  and  seventy-one  ($1,971.61)  dollars; 
Wallis  Iron  Works.  [Seal.]  Wm.  T.  Wallis, 
Treas.  [Seal.]  The  Monmouth  Park  Ass'n. 
By  A.  J.  Cassatt,  President.  Witness  this 
11th  day  of  December,  1S89:    T.  M.  Croft." 

Added  to  this  are  "Revised  Specifications," 
the  last  clause  of  which  is:  "Payments.  On 
or  about  the  first  day  of  each  month,  the  en- 
gineer Avill  make  an  approximate  estimate 
of  the  amount  of  v.'ork  erected  and  delivered 
under  these  specifications  during  the  preced- 
ing month,  and  the  contractor  will  be  paid 
ninety  per  cent,  of  the  amount  of  these  esti- 
mates. Thirty  days  after  the  acceptance  of 
the  completed  work  by  the  owner,  the  retain- 
ed ten  per  cent,  will  be  paid  the  contractor, 
upon  his  fmnishiug  satisfactory  evidence  that 
no  liens  or  unsatisfied  claims  exist  on  the 
W'Ork,  or  any  part  of  it."  These  specifications 
were  also  signed  and  sealed  by  the  parties. 
The  pleadings  are  sufficient  to  warrant  the 
questions  involved  in  the  exceptions  taken 
at  the  trial. 

Jos.  D.  Bedle,  for  plaintiff  in  error.  Gil- 
bert Collins,  for  defendant  in  error. 

DIXON,  J.  (after  stating  the  facts).  The 
first  exception  to  be  considered  took  its  rise 
from  the  fact  that  the  structure  was  not  com- 
pleted within  the  time  limited  by  the  con- 
tract, nor  until  94  days  after  the  expira- 
tion of  a  month's  extension  of  that  time. 
The  defendant  claimed  a  deduction  or  set 
off  of  $100  for  each  day's  delay.  The  plain- 
tiff met  this  claim  by  insisting  that  the 
clause  in  the  contract  mentioning  the  $100 
per  day  is  unintelligible,  and  therefore  nuga- 
tory, because  in  its  opening  line  it  reads: 
"In  case  the  said  party  of  the  first  part  shall 
•  *  *  to  fully  and  entirely,"  etc.,  omitting 
any  effective  verb.  We  agree,  however,  with 
the  trial  judge,  in  thinking  that  the  context 
shov,'s  the  verb  which  should  be  supplied. 
It  makes  the  $100  payable  for  each  day  that 
"the  party  of  the  first  part  shall  be  in  de- 
fault." This  plainly  indicates  the  verb  "fail" 
as  the  omitted  word,  to  be  supplied  as  an 
equivalent  for  the  expression,  "be  in  default." 
The  right  of  a  court  of  law  to  read  an  in- 
strument according  to  the  obvious  intention 
of  the  parties,  in  spite  of  clerical  errors  or 
omissions  which  can  be  corrected  by  perusing 
the  instrument,  is  sufficiently  vindicated  by 
the  decision  of  this  court  in  Sisson  v.  Don- 
nelly, 36  N.  J.  Law,  432.  See,  also,  Burchell 
v.  Clark,  2  C.  P.  Div.  88. 

Taking  the  clause  thus  perfected,  the  plain- 
tiff urged  that  the  $100  a  day  was  a  penalty; 
and  so  the  trial  judge  ruled,  requiring  that 
the  defendant  should  prove  the  actual  dam- 


ages,   and    be   allowed    only   for    what    w^as 
proved.    To  this  ruUng  the  defendant  except- 
ed.   In    determining    whether    a    sum    which 
contracting  parties  have  declared  payable  on 
default   in   performance   of  their  contract   is 
to  be  deemed  a  penalty,  or  liquidated  dam- 
ages, the  general  rule  is  that  the  agreement 
of    the    parties    will    be    effectuated.    Their 
agreement  will,  however,  be  ascertained  by 
considering,    not    only    particular    words    in 
their  contract,  but  the  whole  scope  of  their 
bargain,    including   the   subject  to   which   it' 
relates.    If,  on  such  consideration,  it  appears 
that  they  have  provided  for  larger  damages 
than  the  law  permits,   e.   g.   more  than  the 
legal  rate  for  the  nonpayment  of  money,  or 
that  they  have  provided  for  the  same  dam- 
ages  on  the  breach   of  any   one   of  several 
stipulations,    when    the  loss    resulting    from 
such  breaches  clearly  must  differ  in  amount, 
or  that  they  have  named  an  excessive  sum 
in  a  case  where  the  real  damages  are  cer- 
tain,   or   readily    reducible    to    certainty    by 
proof  before  a  jury,  or  a  sum  which  it  would 
be  luiconscionable   to   award,   under  any   of 
these  conditions  the  sum  designated  is  deem- 
ed a  penalty.    And  if  it  be  doubtful,  on  the 
whole  agreement,   whether   the    sum    is   in- 
tended as  a  penalty  or  as  liquidated  damages, 
it  will  be  construed  as  a  penalty,  because  the 
law  favors  mere  indemnity.     But  when  dam- 
ages are  to  be  sustained  by  the  breach  of  a 
single  stipulation,  and  they  are  uncertain  in 
amount,  and  not  readily  susceptible  of  proof 
under  the  rules  of  evidence,  then,  if  the  par- 
ties have  agreed  upon  a  sum  as  the  measure 
of  compensation  for  the  breach,  and  that  sum 
is    not   disproportionate   to   the   presumable 
loss,  it  may  be  recovered  as  liquidated  dam- 
ages.    These  are  the  general  principles  laid 
down  in  the  text  books,  and  recognized  in  the 
judicial   Reports   of  this   state.     Cheddick's 
Ex'r  V.  Marsh,  21  N.  J.  Law,  463;    Whitfield 
V.   Levy,   35   N.  J.   Law,   149;    Hoagland   v. 
Segur,  as  N.  J.  Law,  230;    Lansing  v.  Dodd, 
45  N.  J.  Law,  525.     In  the  present  case  the 
default  consists  of  the  breach  of  a  single 
covenant,  to  complete  the  grand  stand  as  de- 
scribed in  the  approved  plans  and  specifica- 
tions within  the  time  limited.    It  is  plain  that 
the  loss  to  result  from  such  a  breach  is  not 
easily  ascertainable.    The  magnitude  and  im- 
portance of  the  grand  stand  may  be  inferred 
from  its  cost,— $133,000.    It  formed  a  neces- 
sary  part  of  a   very   expensive   enterprise. 
The  structure  was  not  one  that  could  be  said 
to  have  a  definable  rental  value.     Its  worth 
depended  upon  the  success  of  the  entire  ven- 
ture.    How   far  the   noncompletion   of   this 
edifice  might  affect  that  success,  and  what 
the  profits  or  losses  of  the  scheme  would  be, 
were  topics  for  conjecture  only.    The  condi- 
tions, therefore,  seem  to  have  been  such  as  to 
justify  the  parties  in  settling  for  themselves 
the  measure  of  compensation.     The  stipula- 
tions of  parties  for  specified  damages  on  the 
breach  of  a  contract  to  build  within  a  limited 
lime  have  frequently   been   enforced  by  the 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


197 


coui-ts.     In  Fletcher  v.  Dyche,  2  Term  R.  32, 
£10  per  week  for  delay  in  finishing  the  parish 
church;    in  Duckworth  v.  Alison,  1  Mees.  & 
W.  412,  £5  per  Aveek  for  delay  in  completing 
repairs  of  a  warehouse;    in  Legge  v.   Har- 
lock,  12  Q.  B.  1015,  £1  per  day  for  delay  in 
erecting  a  barn,  wagon  shed,  and  granary; 
in  Law  v.  Local  Board   (1802)  1  Q.  B.  127, 
£100  and  £5  per  Avcek  for  delay  in  con^rti-uct- 
ing  sewerage  works;    in  Ward   v.   Building 
Co.,    125    N.    Y.    230,    26    N.    E.    256,    $10   a 
day  for  delay  in  erecting  dwelling  houses; 
and  in  Malone  v.  City  of  Philadelphia  (Pa. 
Sup.)  23  Atl.  628,  $50  a  day  for  delay  in  com- 
liletlng  a  municipal  bridge,— were  all  deemed 
liquidated   damages.     Counsel    has   referred 
us  to  two  cases  of  building  contracts,  where 
a  different  conclusion  was  reached:      Mul- 
doon  V.  Lynch,  66  Cal.  536,  6  Pac.  417,  and 
Clements  v.  Railroad  Co.,  132  Pa.  St.  445,  19 
Atl.  ^74,  276.     In  the  former  case  a  statutoiy 
rule  prevailed,  and  in  the  latter  the  real  dam- 
age was  easily  ascertainable,  and  the  stipu- 
lated sum  was  uuconscional^le.     In  the  case 
at  bar  we  have  no  data  for  saying  that  $100 
a  day  was  unconscionable.     The  sole  ques- 
tion remaining  on  this  exception,  therefore,  is 
whether  the  parties  have  agreed  upon  the 
sum  named  as  liquidated  damages.    Their  lan- 
guage seems,  indisputably,  to  have  this  mean- 
ing.    They  expressly  declare  the  sum  to  be 
agreed  upon  as  the  damages  which  the  de- 
fendant will  suffer,  they  expressly  deny  that 
they  mean  it  as  a  penalty,  and  they  provide 
for  its   deduction  and  retention  by  the  de- 
fendant in  a  mode  Avhich  could  be  applied 
only  if  the  sum  be  considered  liquidated  dam- 
ages.    But  it  is  argued  that  as  the  contract 
authorized  the  engineer  of  the  defendant  to 
make  any  alterations   or  additions  that   he 
might  find  necessary  during  the  progress  of 
the  structure,  and  required  the  plaintiff  to 
accede  thereto,  it  is  unreasonable  to  suppose 
that  the  plaintiff'  could  have  intended  to  bind 
itself,   in  liquidated   damages,  for  delay   in 
completing  such  a  changeable  contract.     But 
this  argument  seems  to  be  aside  from  the 
present  inquiry,  which  is,  not  whether  the 
plaintiff  became  responsible  for  damages  by 
reason   of  the  noncompletion   of  the   gi"and 
stand  on  the  day  named,  but  whether,  if  it 
did   become  so   responsible,   those  damages 
are  liquidated  by  the  contract.     On  the  ques- 
tion first  stated,  changes  ordered  by  the  en- 
gineer may  affoi'd  matter  for  consideration; 
on  the  second  question,  they  are  irrelevant. 
Certaiulj'  the  bills  of  exceptions  do  not  indi- 
cate any  alterations  or  additions  which,  as 
matter  of  law,   would   relieve  the  plaintiff 
from  responsibility  for  the  admitted  delay, 
and    conse'quently    there    may    have    been 
grourid  for  considering  the  defendant's  dam- 
ages.    If  there  was,  the  amount  of  the  dam- 
ages was  adjusted  by  the  contract  at  $100 
per  day.     We  think  the  ruling  at  the  circuit 
on  this  point  Avas  erroneous. 

We  think,  also,  that  the  letter,  Exhibit  P 
-8,  Avritteu  September  10,  1890,  by  F,  Latou- 


rette  to  the  plaintiff,  Avas  illegally  received  in 
fvidence.  It  Avas  offered  and  admitted  as  a 
decision  by  the  chief  engineer  of  the  defend- 
ant under  the  contract.  Since  it  AA'as  Avrit- 
ten  after  the  completion  of  the  AA'Oi'k,  and 
after  the  Avriter  had  ceased  to  be  the  engi- 
neer of  the  defendant,  and  without  notice  to 
the  defendant,  it  could  not  possess  the  char- 
acter attributed  to  it. 

The  only  other  exception  AA^hich  it  appears 
useful  to  notice  is  that  relating  to  the  exist- 
ence of  claims  by  outside  parties.    The  agree- 
ment contains  two  clauses  on  this  subject,— 
one  under  the  head,  "Specification;"    the  oth- 
er, under  the  head,  "Revised  Specification." 
It  seems  proper  to  hold  that  the  latter  clause 
is  substituted  in  the  contract  for  the  former, 
and  therefore  it  only  need  be  considered.     It 
reads:     "Thirty  days  after  the  acceptance  of 
the  completed  work  by  the  owner,  the  re- 
tained ten  per  cent.  avIU  be  paid  the  contract- 
or, upon  his  furnishing  satisfactory  evidence 
that  no  liens  or  unsatisfied  claims  exist  on 
the  Avork,  or  any  part  of  it."     The  expres- 
sion, "liens  or  unsatisfied  claims  on  the  work," 
must  mean  claims  Avhich  can  be  enforced 
against  the  Avork,  and  such  claims  could  exist 
only   under   our   mechanic's   lien  law.      By 
"liens"  the  parties  intended  claims  filed  un- 
der that  laAv;    by  "unsatisfied  claims,"  they 
intended  claims  which  Avere  not,  but  might 
be,  filed  under  that  law.     The  statute  (Re- 
vision, p.  068,  §  2)  provides  "that  when  any 
building  shall  be  erected,  in  Avhole  or  in  part, 
by  contract  in  Avriting,   such  building,   and 
the  land  Avhereou  it  stands,  shall  be  liable  to 
the  contractor  alone  for  work  done  or  ma- 
terials furnished  in  pursuance  of  such  con- 
tract:   provided   such   contract,   or  a   dupli- 
cate thereof,  be  filed  in  the  office  of  the  clerk 
of  the  county  in  which  such  building  is  sit- 
uate before  such  Avork  done  or  materials  fur- 
nished;"  and  (section  13)  "that  no  debt  shall 
be  a  lien  by  virtue  of  this  act  unless  a  claim 
is  filed  as  hereinbefore  provided  Avithin  one 
j^ear  from  the  furnishing  the  materials   or 
performing  the  labor  for  which  such  debt  is 
due."     The  contract   betAveen  these  parties 
was  filed  January  2,  1890.     Hence  no  liens 
could  arise  in  favor  of  outside  parties  for 
work  done  or  materials  furnished  after  that 
date.     For  work  done  or  materials  furnished 
before  that  date,  no  debt  would  be  a  lien  un- 
less a  claim  were  filed  within  a  year,  i.  e. 
before   Januaiy   2,    1891.     At   the   date   last 
named,  no  such  claim  was  filed,  and,  so  far 
as  appears,   no   such  claim  was   ever  filed. 
The   suit   was   commenced   March   12,   1891. 
We  think  these  facts  furnished  satisfactory 
evidence  that  there  were  no  liens  or  unsatis- 
fied claims  on  the  work  when  the  action  was 
brought,  and  that  on  this  point  there  was  no 
error  at  the  trial. 

The  other  exceptions  adverted  to  by  counsel 
for  the  defendant  are  either  untenable,  or  on 
questions  not  likely  to  arise  upon  a  new  trial. 
Let  the  judgment  be  reversed,  and  a  venire 
de  novo  be  awarded. 


198 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


KECK  V.  BIEBER. 

(24  Atl.   170,  148  Pa.  645.) 

Supreme  Court  of  Pennsylvania.     May  2,  1892. 

Appeal  from  court  of  common  pleas,  Le- 
high county;  Edwin  Albright,  Judge. 

Assumpsit  by  Emeline  C.  Keck  against  Syl- 
vester Bieber  on  a  bond  whereby  he  prom- 
ised to  pay  her  $2,000  upon  the  non-perform- 
ance of  certain  conditions.  There  was  no 
dispute  as  to  the  breach  of  condition,  and 
a  verdict  was  directed  for  plaintiff  for  the 
full  amount  of  the  bond.  From  a  judgment 
entered  thereon,  defendant  appeals.  Re- 
versed. 

Jas.  S.  Biery  and  Edward  Harvey,  for  ap- 
pellant. C.  J.  Erdman  and  R.  E.  Wright's 
Sons,  for  appellee. 

MITCHELL,  J.  The  general  principle  up- 
on which  the  law  awards  damages  is  com- 
pensation for  the  loss  suffered.  The  amount 
may  be  fixed  by  the  parties  in  advance,  but, 
where  a  lump  sum  is  named  by  them,  the 
court  will  always  look  into  the  question 
whether  this  is  really  liquidated  damages  or 
only  a  penalty,  the  presumption  being  that 
it  is  the  latter.  The  name  by  which  it  is' 
called  is  but  of  slight  weight,  the  controlling 
elements  being  the  intent  of  the  parties  and 
the  special  circumstances  of  the  case.  The 
subject  has  always  presented  difficulties  in 
the  formulation  of  a  general  rule,  and  es- 
pecially in  its  application.  The  books  are 
full  of  inharmonious  decisions.  In  no  state, 
however,  have  the  difficulties  been  more  suc- 
cessfully minimized  than  in  Pennsylvania, 
and  in  no  case  that  I  have  seen  is  there  a 
better  generalization  than  that  by  Agnew, 
J.,  in  Streeper  v.  Williams,  48  Pa.  St.  450: 
"In  each  case  we  must  look  at  the  language 
of  the  contract,  the  intention  of  the  parties 
as  gathered  from  all  its  provisions,  the  sub- 
ject of  the  contract  and  its  surroundings,  the 
ease  or  difficulty  of  measuring  the  breach  in 
damages,  and  the  sum  stipulated,  and  from 
the  whole  gather  the  view  which  good  con- 
science and  equity  ought  to  take  of  the  case." 
The  only  criticism  to  which  this  would  seem 
to  be  fairly  open  is  that  it  does  not  perhaps 
give  sufficient  prominence  to  the  intention 
of  the  parties  as  the  controlling  element,  and 
it  should  therefore  be  read  in  connection 
with  the  restatement  of  it  by  our  late  Broth- 
er Clark,  in  March  v.  Allabough,  103  Pa.  St. 
3d5:  "The  question  *  *  *  is  to  be  de- 
termined by  the  intention  of  the  parties, 
drawn  from  the  words  of  the  whole  contract, 
examined  in  the  light  of  its  subject-matter 
and  its  surroundings;  and  in  this  examina- 
tion we  must  consider  the  relation  which  the 
sum  stipulated  bears  to  the  extent  of  the  in- 
jury which  may  be  caused  by  the  several 
breaches  provided  against,  the  ease  or  diffi- 
culty of  measuring  a  breach  in  damages,  and 
such  other  matters  as  are  legally  or  neces- 


sarily inherent  in  the  transaction."  Tlie  in- 
tent of  the  parties  being,  therefore,  the  prin- 
cipal object  of  ascertainment,  Greenleaf  lays  , 
down  certain  rules  as  the  result  of  the  cases,.; 
and,  among  them,  that  the  sum  is  tq^be'- 
taken  as  a  penalty  "where  the  agreement 
contains  several  matters  of  different  degreies~ 
of  importance,  and  yet  the  sura"  named  is 
payable  for  the  breach  of  any,  even  the' 
least."  2  Greenl.  Ev.  §  258.  This  rule  ts^ 
approved  in  Shreve  v.  Brereton,  51  Pa.  St. 
175,  and  the  present  case  falls  exactly  within 
it.  The  conditions  of  the  appellant's  bond 
are  two— First,  he  is  to  "save,  defend,  keep- 
harmless,  and  indemnify  the  said  Emelina 
C.  Keck"  from  liability  by  reason  of  the  as- 
signment to  him  over  the  head  of  Neiser,. 
and  the  termination  of  the  latter's  mining 
rights.  This  is  clearly  a  covenant  for  indem- 
nity only,  and,  as  no  breach  was  assigned, 
need  not  be  further  discussed.  But,  second- 
ly, he  is  to  pay  the  royalty  acci-uing  in  the 
future,  and  "keep  and  perform  all  the  cove- 
nants, conditions,  and  stipulations  of  the  said 
lease  and  assignment"  Tuniing  now  to  the 
lease,  we  find  that  plaintiff's  covenants  with 
Kemmerer,  which  appellant  thus  bound  him- 
self to  keep  and  perform,  were  to  save  harm- 
less and  indemnify  him  against  all  costs  and 
damages  to  his  neighbors  from  the  washing 
of  the  ore,  to  run  the  water  in  such  places  as 
the  lessor  should  oi'der,  to  pay  a  stipulated 
royalty,  to  fill  up  holes  made  and  left  in  the 
search  for  ore,  to  produce  or  pay  royalty  up- 
on a  minimum  of  one  thousand  tons  a  year, 
"to  use  the  old  wagon  road  for  hauling  said 
iron  ore,  and,  in  case  there  are  gates  or  bars 
on  said  road,  *  *  *  to  keep  said  gates 
and  bars  in  repair,  *  *  *  and  keep  them 
shut  when  through,"  etc.  The  assignment 
adds  to  these  a  covenant  to  pay  plaintiff, 
the  assignor,  an  additional  royalty  upon  a 
slidiug  scale  of  the  price  of  ore  per  ton.  No 
better  illustration  of  the  propriety  of  the  rule 
referred  to  could  be  stated.  Here  are  nu- 
merous covenants  of  the  most  varied  kinds 
and  importance.  The  covenants  to  indem- 
nify against  claims  by  Neiser,  and  against 
damages  to  the  neighbors  by  the  operation 
of  washing,  are  undertakings  which  may  be 
of  serious  magnitude;  and  under  Dick  v.  Gas- 
kill,  2  Whart.  184;  Shreve  v.  Brereton,  51 
Pa.  St.  175;  Moore  v.  Colt,  127  Pa.  St.  289,  18 
Atl.  8,— and  similar  cases,  the  recovery  for  a 
breach  would  probably  not  be  limited  by  the 
sum  named  in  the  bond.  On  the  other  hand, 
the  covenants  to  fill  up  the  holes  made  in 
prospecting  for  ore,  and  to  keep  the  gates  on 
the  old  wagon  road  in  repair  and  shut,  are 
against  such  trivial  inconveniences  that  it 
would  savor  of  absurdity  to  suppose  that  the 
parties  meant  to  stipulate  for  .$2,000  damages 
for  the  breach  of  any  one  of  them.  We  are 
therefore  of  opinion  that  defendant's  fourth 
point,  that  the  conti-act  of  the  parties  was 
for  a  penalty,  should  have  been  affirmed. 
It  Avill  not  follow,  however,  as  appellee  seems 


LIQUIDATED  AND  UNLIQUIDATED  DAMACJES. 


199 


to  fear,  that  her  recovery  must  be  limited  to 
the  loss  of  the  royalty  due  her  at  the  time 
of  bringing  suit,  and  that  she  must  bring  re- 
peated suits  for  future  failures  to  pay.  The 
defendant  has,  by  his  acts,  disabled  himself 
absolutely  and  permanently  from  perfoi-m- 


ance  of  his  covenants.    Under  such  circum-      ment  reversed,  and  venire  de  novo  awarded 


stances,  the  plaintiff  may  sue  on  the  con- 
tract from  time  to  time  for  the  royalties  due, 
and  for  such  other  damages  as  she  may  suf- 
fer, or  she  may,  at  her  election,  treat  the 
contract  as  rescinded,  and  claim  damages 
in  one  action  for  the  entire  breach.    Judg- 


200 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


TENNESSEE  MANUF'G  CO.  v.  JAMES. 

(18  S.  W.  262,  91  Tenn.  154.) 

Supreme   Court  of   Tennessee.    Jan.    26,    1892. 

Error  to  circuit  court,  Davidson  coun- 
ty;  VV.  K.  McAmjstf,i{,  Judge. 

Action  by  Minnie  James,  a  rolnor,  by 
her  next  friend,  against  the  Tennessee 
Manulacturing  Company,  to  recover  on  a 
qijiiiitiini  meruit  iov  work  and  labor  per- 
formed by  lier  for  defendant.  Judgment 
for  plaintiff,  and  defendant  brings  error. 
Reversed. 

Dicldnson  &Frazer,for  plaintiff  in  error. 
E.  J.  Wiekware,  for  defendant  in  error. 

LURTON,  J.  Minnie  James,  a  minor,  was 
,in  employe  of  the  apo'l'fMit,  n  (•nrtu>r!<- 
tion  engaged  in  the  manufacture  of  cotton 
goods.  The  contract  of  emploj'Ufent  was 
in  writing,  and  was  witii  the  minor  and 
her  father.  By  one  of  the  provisions  of  the 
contract  It  was  stipulated  that  the  em- 
ploye should  give  two  weeks'  notice  of  her 
intention  to  quit.  It  is  further  [)rovided 
that,  in  caseshe  should  leave  without  giv- 
ing two  weeks'  notice,  "or  fail  or  refuse 
to  faithfully  work  during  a  peiiod  of  two 
weeks  cifter  giving  notice  of  an  intention 
to  leave,  *  *  *  tlien  it  is  hereliy  agreed 
that -the_a mount  stated  below  for  the 
class  to  which  I  may  belong  is  agreed 
uponas  liquidated  damages  due  sanFTen- 
riessce  Manufacturing  Company  at  the 
time  of  my  failure  to  comply  with  the 
terms  of  this  contract,  to  compensate  it 
for  all  damages,  both  actual  and  exem- 
plary, and  all  loss,  arisingfrom  my  failure 
to  carry  out  the  terms  of  this  agreement; 
and  it  is  further  agreed  upon  that  said 
amount,  applicable  to  the  class  of  em- 
ployes to  Aviiich  I  may  belong,  shall  be  de- 
ducted from  any  sum  which  may  be  due 
me  by  said  company,  whether  on  account 
of  services  rendered  or  otherwise."  The 
class  to  which  appellee  belonged  was  that 
of  those  receiving  50  cents  per  day  and  un- 
der .fl.  The  damages  stipulated  for  this 
class  was  $10.  .At  the  foot  of  this  agree- 
ment, which  was  signed  by  appellee,  was 
this  further  agreement  signed  by  her  fa- 
ther: "The  foregoing  agreement  has  been 
read  by  me,  and,  fully  understanding  the 
same,  it  is  also  agreed  toby  me,  as  binding 
both  me  and  my  daughter,  Minnie  Jan)es, 
who  is  legally  disqualified  from  making 
this  contract,  to  all  its  terms  and  con- 
ditions. I  agree,  further,  that  said  Minnie 
James  is  hereby  authorized  to  receive  the 
wages  of  said  work,  and  that  all  sums 
paid  to  said  employe  are  to  be  accepted 
as  fully  discharging  all  liability,  to  the  full 
aufount  so  paid  ;  and  said  wages  are  to 
be  subject  to  all  the  condi  tions  of  this  con- 
tract, as  though  said  employe  was  legally 
empowered  to  act  in  person."  Appellee 
gave  notice  of  her  intention  to  leave,  and 
thereafter  worked  10  days,  but  at  the  end 
of  that  time  quit  without  anj'  excuse.  At 
the  time  she  quit  there  was  doe  her  20 
days'  wages,  including  the  10  daj's  after 
her  notice.  If  the  stipulation  as  to  dam- 
ages is  invalid,  then  the  company  is  due 
lief  $10;  if  valid,  then  nothing  is  due  her. 
Ui>on   (luitting   she   brought   suit,  by   her 


father  as  next  friend,  upon  a  quantum 
meruit.  The  contract  has  been  set  up  aa 
a  defense  to  her  suit. 

The  circuit  judge  being  of  opinion  that 
the  contract  was  invalid,  as  being  one 
with  a  minor  who  had  a  legal  right  to 
repudiate  same,  gave  judgment  for  the 
plaintiff.  In  this  we  think  his  honor  eri-ed. 
If  the  contract  had  been  alone  with  the 
minor,  she  might  undoubtedly  repudiate 
it,  and  recover  upon  a  quoiitiini  meruit. 
The  law  would  give  the  infant  the  privi- 
lege of  judging  whether  such  a  contract 
was  beneficial  or  not,  and  of  avoiding  it 
if  she  elected  to  do  so,  and  i-ecovering  the 
value  of  her  services  as  if  she  worked 
without  any  contract.  10  Amer.  &  Eng. 
Enc. Law, tit. "Infant."  But  rhiscontract 
was  in  law  with  the  father,  who  agreed 
that  the  wages  in  law  due  t(j  him  might 
be  paid  over  to  his  child,  "subject  to  all 
the  conditions  of  this  contract."  The 
wages  of  a  minor,  peculiar  circumstances 
out  of  the  way,  are  due  to  the  father. 
This  springs  from  his  legal  duly  to  sup- 
port and  educate  his  child.  He  may  per- 
mit the  minor  to  take  and  use  his  own 
earnings.  This  is  called  "emancipation,  " 
and  emancipation  will  be  a  defense  to  the 
fathf'r's  suit  for  the  minor's  wages.  It 
may  be  express  or  implied  ;  entire  or  par- 
tial. It  niay  be  conditional.  It  may  be 
in  writing  or  oral ;  for  the  whole  minority 
or  for  a  shorter  term  ;  as  to  a  part  of  the 
child's  wages  or  as  to  the  whole.  Eman- 
cipation will  not  enlarge  the  minor's  ca- 
I)acity  to  c-ontract;  it  Bimi)ly  precludes 
the  father  from  asserting  his  claim  to  the 
wages  of  his  child.  Bish.  Cent.  §  SDS.  If 
one  employ  a  minor  with  notice  of  the 
non-emancipation  of  the  infant,  it  will  be 
no  defense  to  the  father's  suit  for  the 
wages  that  the  child  has  received  them. 
On  the  other  hand,  payment  to  the  father 
will  be  no  defense  to  the  minor's  suit,  if 
the  employer  knew  of  the  fact  of  emanci- 
pation. These  principles  of  the  common 
law  are  well  settled,  and  have  not  been 
affected  by  statute.  Cloud  v.  Hamilton, 
11  Humph.  105.  The  cases  in  America  are 
collected  in  a  note  to  Wilson  v.  Mc]\Iillan, 
35  Amer.  Rep.  117. 

In  view  of  these  principles,  we  must  con- 
strue the  contract  of  the  father  as  an 
emancipation,  subject  to  the  conditionsaa 
to  damages  in  case  his  child  shall  quit 
without  cause  and  without'the  stipulated 
notice.  It  is  as  much  as  if  he  had  said : 
"My  child  is  a  minor.  As  such,  1  am  en- 
titled to  her  wages.  I  am  willing  that  she 
shall  work  in  your  mill,  and  that  the 
wages  she  may  earn  shall  be  paid  to  her. 
1  agree  that  s'he  shall  comply  with  this 
contract,  and,  if  she  does  )iot,  then  the 
wages  legally  due  me  shall  be  detained  by 
yoii  to  the  extent  i)rovidedin  the  contract 
i  make  for  her,  and  only  su^^'i  wages  [laid 
to  her  as  I  would  be  entitled  to  receive  if 
the  contract  were  exclusively  with  me." 
This  was  a  conditional  emancipation,  un- 
der a  special  contract  made  by  and  with 
the  father  for  himself  and  his  child.  Her 
emancipation  was  partial.  The  father, 
having  a  legal  right  to  her  entire  wages, 
has  stipulated  that  none  shall  be  paid  her 
beyond  the  sum  due  under  this  agreement 
with  him.     If  this  contract   is   binding  on 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


201 


him,  the  minor  cannot  recover  beyond  its 
limits.  If  the  contract  is  invalid  as  to 
Iiim,  as  stipnlatins  for  a  penalty,  then  ic 
will  not  be  in  the  way  of  plaintilf's  suit. 
We  afii-ee  with  the  circuit  jnd;;e  in  iioldins 
that  this  contract  doe^  not  fall  within  the 
case  of  Schrimpf  v.  iSIaniifactui'inj;'  Co.,  Hi 
Tenn.  2\9,  6  S.  \V.  Kep.  Vol.  That  case 
concerned  a  contract  construed  as  vStii)U- 
latinfi  for  a  penalty  in  case  of  a  breach.  It 
was  held  not  to  be  an  aj;ioemenl  for  liqui- 
dated daniap;ee,  because  the  forfeiturecov- 
cred  all  the  wa^es  due  at  time  of  breach, 
regardless  of  amount  due,  and  rep;aidless 
tts  to  whether  the  arrearages  were  ilie 
consequence  of  the  default  of  thecouipany. 
It  was  a  contract  harsli  and  unconscinn- 
able.  It  preserved  noiiroportJon  between 
tl;e  sum  forfeited  and  the  actual  dania;i:(!H, 
and  put  all  employes  up(ju  same  footinj^, 
whether  much  or  little  was  earned,  much 
or  little  doe,  when  breach  occurred.  The 
<lamaj;es  were  to  be  all  that  was  due,  in 
any  case.  To  one,  this  might  have  been 
the  wages  of  months;  to  another,  the 
earnings  of  but  a  day.  But  in  that  case 
Chief  Justice  Turney  quoted  and  indorsed 
tlie  language  of  (.'AiMPiiicLi.,  J.,  in  Richard- 
son V.  Woenler,  26  Mich. 'JO,  where  he  said  : 
"  We  have  no  difhculty  in  holding  that  the 
injury  caused  by  the  sudden  brealving  off 
of  a  contract  of  service  by  either  party  in- 
volves such  difficulties  cuucerning  the  act- 
ual loss  as  to  render  a  reasonable  agree- 
ment for  stipulated  damages  appropriate. 
If  a  fixed  sum,  or  a  maximum  within 
wh"ch  wages  unpaid  and  accruing  since 
the  last  pay-day  might  be  foi'feited,  should 
be  agreed  on,  and  shall  not  be  unreason- 
able oi-an  oppressiveexaction,  there  would 
seem  to  be  no  legal  objection  to  the  stip- 
ulation, if  both  parties  are  equall3'  and 
justly  protected."  Applying  these  prin- 
ciples to  the  case  for  judgment,  we  have 
no  difficulty  in  holding  that  the  stipula- 
tion here  is  for  liquidated  damages,  and 
not  for  a  penalty,  and  that  thecontract  is 
neither  unreasonable  nor  oppressive. 
"Tiie  tendency  and  preference  of  the  law  is 
to  regard  stated  sums  as  a  penalty,  be- 
cause actual  damages  can  then  be  recov- 
ered, and  therecovery limited  tosucUdam- 
ages.  This  tendency  and  preference,  how- 
ever, do  not  exist  when  the  actual  dam- 
ages cannot  be  ascertained  by  any  stand- 
ard. A  stipulation  to  liquidate  damages 
in  such  cases  is  considered  favorably. "  1 
Suth.  Dam.  4'JO.  This  contract  of  employ- 
ment on  its  face  affords  no  dntn  by  which 
the  actual  damages  likely  to  result  from 
its  non-observance  can  with  any  certainty 
be  ascertained.  Such  a  circumstance  has 
been  regarded  as  justifying  the  courts  in 


1   holding    the   sum  stiiiulated  as  liquidated 
damages. 

The  phuntiff  in  error  was  a  cotton-mill, 
having  in  its  employment  hundreds  of 
hands.  The  work  is'  divided  into  inanv 
departments.  Thi'  raw  matei'ljil  is 
handled  by  one  set  of  hands,  and  i)ut  in 
condition  for  another,  and  the  second  de- 
partment still  further  advances  its  manu- 
facture; and  so  on,  through  successive 
stages  of  progress.  The  evidence  sho^^  s 
that  each  department  is  dependent  ui)on 
that  immediately  below  it.  Now,  if  the 
operatives  of  one  department  (piit,  or  their 
work  is  d(ilayed,  its  effect  is  felt  in  all  to  a 
greater  or  less  degree.  It  is  also  shown 
that  it  is  not  always  easy  to  replace  an 
operative  at  once, and  that tlieuuexpecied 
quitting  of  even  one  hand  will  to  S(jnie  ex- 
tent affect  the  results  throughout  the  mill. 
Yet  the  evidence  shows  that  it  would  be 
impossible  to  calculate  with  any  certainty 
the  precise,  actual  loss  due  to  an  unex- 
pected breach  of  an  employe's  engage- 
ment; thoU'j,h  it  is  shown  that  there  are 
some  departments  of  work  where  thequit- 
ting  of  a  small  nuniber  oi  hands,  without 
notice,  would  stop  the  entire  mill,  and 
throw  other  hundreds  out  of  employment. 
In  this  day  of  great  factories,  and  the 
consequent  division  of  labor  into  separate 
departments,  a  degree  of  interdependence 
among  employes  exists,  which  they  ought 
and  do  recognize,  and  which  makes  the 
obligation  of  each  to  the  whole,  and  to 
the  common  employer,  all  the  more  im- 
portant. The  case  is  one,  then,  where  the 
certainty  of  some  damage,  and  the  uncer- 
tainty of  means  and  standards  by  which 
the  actual  damage  can  be  ascertained,  re- 
quire the  courts  to  upiiobl  the  contract 
as  one  for  liquidated  damages,  and  not  as 
providing  for  a  penalty.  The  sum  fixed  is 
certain.  It  is  proportioned  to  the  earning 
capacity  of  theeraploye,  and  hence  presum- 
ably with  regard  to  the  particular  results 
of  a  breach  in  each  department.  There  is 
no  hardship  in  the  agreement  requiring 
2  weeks'  notice.  If  the  operative  leaves 
for  good  cause,  the  contract  would  not 
apply.  If  al)le  to  work,  the  pay  continues 
until  notice   has  been  worked  out. 

That  she  returned  the  next  day  after 
quitting,  and  offered  to  work  out  her  no- 
tice, is  no  compliance.  The  mischief  had 
been  done.  She  had  voluntarily,  and  with- 
out pretense  of  excuse,  or  asking  to  be  re- 
leased, g<jne  off,  and  left  her  work  stand- 
ing, and  endeavored  to  get  others  to  go 
with  her.  The  da  mages  had  accrued,  and, 
under  the  facts  of  this  case,  appellant  was 
not  bound  to  restore  her.  Reverse.  Judg- 
ment liere  for  plaintiff  in  error. 


202 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


TODE  et  al.  v.  GROSS. 

(28  N.  E.  4G9,  127  N.  Y.  480.) 

Court  of  Appeals  of  New  York,  Second  Divi- 
sion.   Oct.  6,  1891. 

Appeal  by  defendant  from  a  judgment 
of  the  general  term  of  the  supreme  court 
in  the  second  judicial  (lei)artment,  affirm- 
ing a  judgment  entered  n{)on  the  decision 
of  tiie  court  after  a  trial  without  a  jury. 
Affirmed. 

Action  for  breach  of  covenant  to  recov- 
er the  sum  of  f5,000  as  stipulated  dam- 
ages. On  the  15th  of  October,  1^S4,  the  de- 
fendant owned  a  cheese  factory  situate  in 
the  town  of  Monroe,  Orange  county,  com- 
prising two  parcels  of  land,  with  the 
buildings  thereon,  and  a  quantity  of  fixt- 
ures, machinery,  and  tools  connected 
therewith.  For  some  time  prior,  with 
the  assistance  of  her  husband,  Conrad 
Gross,  her  brother-in-law,  August  Gross, 
and  her  father,  John  Hoffman,  she  had 
been  engaged  in  the  business  of  manufact- 
uripg  cheeses  at  said  factory  Ivuown  as 
"Fromage  de  Brie,"  "Fromage  d'Isigny," 
and  "  Neufchatel. "  Such  cheeses  were 
made  by  a  secret  process  known  only  to 
herself  and  her  said  agents.  On  the  day 
last  named,  she  entered  into  a  sealed 
agreement  with  the  plaintiffs,  whereby  she 
agreed  to  sell  and  transfer  to  them  the 
said  factory  and  all  its  belongings,  togeth- 
er with  the  "good-will,  custom,  trade- 
marks, and  names  used  in  and  belonging 
to  the  said  business,"  for  the  sum  of  $26,- 
000,  to  be  paid  and  secured  March  1,  1885, 
when  possession  was  to  be  given.  Said 
insti'ument  contained  a  covenant  on  her 
part  that  she  would  "communicate  after 
the  first  day  of  March,  1885,  or  cause  to  be 
communicated,  to"  said  plaintiffs,  "bj' 
Conrad  Gross,  John  Hoffman,  and  August 
Gross,  or  one  or  other  of  them,  the  secret 
of  the  manufacture  of  the  cheeses  known 
as  'Fromage  de  Brie,' '  Neufchatel,'  and 
'D'Isigny,'  and  the  recipe  therefor,  and 
for  each  of  them,  and  will  instruct  or 
cause  to  be  instructed  them,  and  each  ol 
them,  in  the  manufacture  thereof.  And 
that  she  and  the  said  Conrad  Gross,  John 
Hoffman,  and  August  Gross  will  x'efrain 
from  communicating  the  secret  recipe  and 
instructions  for  the  manufacture  of  said 
cheeses,  or  either  of  them,  to  any  and  all 
persons  other  than  the  above-named  par- 
ties of  the  second  [)art,  [plaintiffs,]  and 
will  also,  after  the  first  day  of  April,  1885, 
refrain  from  engaging  in  the  business  of 
making,  manufacturing,  or  vending  of 
said  cheeses,  or  either  of  them,  and  from 
the  use  of  the  trade-marks  or  names,  or  ei- 
ther of  them,  hereby  agreed  to  be  trans- 
ferred in  connection  with  said  cheeses,  or 
either  of  them,  or  with  any  similar  prod- 
uct, under  the  penalty  of  five  thoAisand 
dollars,  which  is  hereby  named  as  stipu- 
lated damages  to  be  paid  by  the  party  of 
the  first  part,  [defendant,]  or  her  heirs, 
executors,  administrators,  or  assigns,  in 
case  of  a  violation  by  the  party  of  the 
first  part  [defendant]"  of  this  covenant, 
of  this  contract,  or  any  part  thereof,  with- 
in five  years  from  the  date  hereof.  "  She 
further  covenanted  that  she  herself,  as 
well  as  "said  Ccjnrad  Gross,  John  Hoff- 
man, and  August  Groos,  during  and  up  to 


and  until  the  first  day  of  May,  1885,  shall 
continue  and  remain  in  said  county  of 
Orange,  and  from  time  to  time,  and  at  all 
reasonable  times  during  said  period,  by 
herself,  or  by  said  Conrad  Gross,  John 
Hoffman,  and  August  Gross,  whenever  so 
requested  by  the  said  parties  of  the  second 
part,  [plaintiffs,]  impart  to  them,  or  ei- 
ther of  them,  the  secret  of  making  sucli 
cheeses,  and  each  of  them,  and  instruct 
them,  and  each  of  them,  in  the  process  of 
manufacturing  the  same,  and  each  of 
them,  as  fully  as  she  or  the  said  Conrad 
Gross,  John  Hoffman,  or  August  (iross, 
or  either  of  them,  are  informed  concern- 
ing the  same."  Both  parties  appear  to 
have  duly  kept  and  performed  the  agree- 
ment, except  that,  as  the  trial  court  fcjund, 
"subsequently-  to  the  Lst  day  of  May,  1885, 
('onrad  Gross,  the  husband  of  defendant, 
went  to  New  York  city,  and  engaged  in 
the  busmess  of  selling  'foreign  and  domes- 
tic fruits,  and  all  kinds  of  cheese  and  saus- 
ages, &c.,'  *  *  *  and  while  so  engaged 
*  *  *  sold  and  personally  delivered 
from  his  place  of  business  to  one  John 
Wassung  three  boxes  of  cheese  marked 
and  named  'Fromage  d'Isigny,'  and  hav- 
ing substantially'  the  same  trade-niarka 
thereon  as  that  sold  by  defendant  to 
plaintiffs,  and  having  stamped  thereon 
the  name  'Froniage  d'Isigny,'  and  that 
said  cheese  so  sold  by  him  to  said  Was- 
sung was  a  similar  jiroduct  to  that  for- 
merly manufactured  by  defendant."  Also, 
that  "said  August  Gross,  the  brother-in- 
law  of  defendant,  subsequent  to  the  1st 
day  of  May,  1885,  engaged  in  the  business 
of  retailing  fancy  groceries  io  the  city  of 
New  York,  and  in  and  during  the  fall  of 
1887,  and  prior  to  the  commencement  of 
this  action,  kept  for  sale  at  his  place  of 
business  in  New  York  city  boxes  of  cheese 
marked  orstamijed  'Fromage  d'Isigny.'" 
The  court  further  found  that  the  cheese 
so  sold  by  Conrad  Gross  under  the  name 
of  "Fromage  d'Isigny,"  "was  never  sold  by 
plaintiffs,  nor  made  or  manufactured  by 
them,  or  either  of  them,  but  that  the 
same  was  a  similar  product.  "  The  court 
found  as  conclusions  of  law  that  said 
agreement  was  a  reasonable  one,  and 
was  founded  upon  a  good  and  sufficient 
consideration;  that  said  sale  by  Conrad 
and  said  keeping  for  sale  by  August 
Gross  was  a  direct  violation  of  the  cove- 
nant in  question;  that  the  restriction  im- 
posed was  no  more  than  the  interests  of 
the  parties  required,  and  that  it  was  not 
in  restraint  of  trade  or  against  public 
policy.  Judgment  was  ordered  for  the 
plaintiffs  for  the  sum  of  $5,000  as  stipulat- 
ed damages. 

John  Fennel,  for  appellant.  Henry  Ba- 
con, for  respondents. 

VANN,  J.  (after  stating  the  facts). 
The  business  carried  on  by  the  defend- 
ant was  founded  on  a  secret  process 
known  only  to  herself  and  her  agents. 
She  had  the  right  to  continue  the  busi- 
ness, and  by  keeping  her  secret  to  enjoy 
its  benefits  to  any  practicable  extent. 
She  also  had  the  right  to  sell  the  business, 
including  as  an  essential  part  thereof  the 
secret  proce.ss,  and,  in  order  to  jjlace  the 
purchasers   in   the  same  position  that  she 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


203 


occupied,  to  proniis:o  to  diviilpje  the  secret 
to  them  alone,  ami  to  keep  it  from  every 
one  else.  In  no  otiier  wajM-oiild  she  sell 
what  she  had,  ami  get  what  it  was  worth. 
Having  the  ri}4;ht  to  make  this  promise, 
Bhe  also  had  the  ri^ht  to  make  it  fiood  to 
her  vendees,  and  to  protect  them  bj'  cove- 
nants with  proper  safeguards  against  the 
consequences  of  an.y  violation.  Such  a 
contract  simplj'  left  matters  substantially 
as  they  were  before  the  sale,  except  that 
the  seller  of  the  secret  had  agreed  that  she 
would  not  destroy  its  value  after  she  had 
received  full  value  for  it.  The  covenant 
was  not  in  general  restraint  of  trade,  but 
was  a  reasonable  measure  of  mutual  pro- 
tection to  the  parties,  as  it  enabled  the 
one  to  sell  at  the  highest  price,  and  the 
other  to  get  what  tliey  paid  for.  It  im- 
posed no  restriction  upon  either  that  was 
not  beneficial  to  the  other,  bj'  enhancing 
the  price  to  the  seller,  or  protecting  the 
purchaser.  Recent  cases  make  it  very 
clear  that  such  an  agreement  is  not  op- 
posed to  public  policy,  even  if  tlie  restric- 
tion was  unlimited  as  to  both  time  and 
territorv.  AL-itch  Co.  v.  Roeber,  106  N.  Y. 
473,  13  N.  E.  Ren.  419;  Hodge  v.  Sloan,  107 
N.  Y.  214,  17  N.  E.  Rep.  335;  Leslie  v.  Loril- 
lard,  110  N.  Y.  019,  534.  18  N.  E.  Rep.  363; 
Thermometer  Co.  v.  Pool,  (Sup.)  4  N.  Y. 
Supp.  S61.  The  restriction  under  consider- 
ation, however,  was  not  unlimited  as  to 
time. 

The  chief  reliance  of  the  defendant  in 
this  court,  where  the  point  seems  to  have 
been  raised  for  the  first  time,  is  that  the 
covenant,  so  far  as  stipulated  damages 
are  concerned,  is  confined  to  the  personal 
acts  of  Mrs.  Gross,  and  does  not  embrace 
the  acts  of  her  agents.  A  careful  reading 
of  the  agreement,  however,  in  the  light  of 
the  circumstances  surrounding  the  parties 
when  it  was  made,  shows  that  no  such  re- 
sult was  intended.  What  was  the  object 
of  the  covenant?  It  was  to  keep  secret, 
at  all  hazards,  the  process  upon  which  the 
success  of  the  business  depended.  On  no 
other  basis  could  the  plaintiffs  safely  buy, 
orthe  defendantsell,  for  what  her  property 
w-as  worth.  Who  had  the  power  to  keep 
the  process  secret?  Clearly  the  defendant, 
if  any  one,  as  she  had  confided  it  to  no  one 
excejjt  her  trusted  agents,  who  were  near- 
ly related  to  her  by  blood  or  marriage. 
But  could  she  covenant  against  the  acts  of 
those  over  whom  she  had  no  control?  She 
had  the  right  to  so  covenant,  by  assum- 
ing the  risk  of  their  actions;  and,  unless 
she  had  done  so,  presumptively  she  could 
not  have  sold  her  factory  for  so  large  a 
sum.  It  was  safer  for  her  to  sell  with 
such  a  covenant  than  it  was  for  the  plain- 
tiffs to  buy  without  it.  She  could  exercise 
some  power  over  her  own  husband  and 
her  father  and  her  husband's  brother,  all 
of  whom  had  been  associated  with  her  in 
carrying  on  the  business,  and  whose  ac- 
tions in  certain  other  respects  she  assumed 
to  control  for  a  limited  time,  whereas  the 
plaintiffs  were  powerless,  unless  they  had 
her  promise  to  keep  the  process  secret  at 
the  peril  of  paying  heavily  if  she  did  not. 
It  is  not  surprising,  therefore,  to  find  that 
the  restrictive  part  of  the  covenant  ap- 
plies with  the  same  force  to  her  agents 
that  it  docs  to  herself;  for  she  undertakes 


that  neither  she  nor  they   will  disclose  the 
secret,  or  engage  in    making  or  selling   ei- 
ther kind  of  cheese,  oi*use  the  trade-marks 
or    names   connected    with    the    business. 
We  do  not  think  that  a  personal  act  of  th« 
defendant  is  essential  to  a  violation  of  thist 
covenant   by   her;  for  if  she   permits,   or 
even   does  not   prevent,  her  agents  from 
doing   the  prohibited  acts,  the  promise  is 
broken.     While  It  is   her  exclusive    cove- 
nant,  it  relates   to   the  action  of  others; 
and,  if  they  do  what  she  agi-eed   that  they 
would   not   do,  it  is   a    breach    by  her.  al- 
though not  her  own  act.    She  violated  her 
agreement,  not  by  selling   herself,  but   by 
not  preventing  others  from  selling.     This 
construction  of  the  restrictive  part  of  the- 
covenant  would   hardly  be  open    to   ques- 
tion, were  it  not  that  in  the  same  sentence 
occurs  the  reparative    or    compensatory 
part  designed  to  make  the  plaintiffs  whole 
if  the  defendant  either  c(»uld   not  or  did 
not  keep   her  agreement.     While  this  pro- 
vides that  any  violation  involves  the  pen- 
alty of  .f  .5,000,  it  adds,  "  which  sum  is  here- 
by named    as  stipulated    damages    to   be 
paid"  by  the  defendant  in  case  of  a  viola- 
tion  by  her  of  the  covenant  in  question. 
What  kind  of  violation  is  thusreferred  to? 
The  defendant   says  a   personal  violation 
by  her  only,  but  we  think,  for  the  reasons 
already  given,  that  the  spirit  of  the  agree- 
ment includes   both   a   violation    by    her 
own   act   and   by  the  act   of  those  whom 
she  did  not  prevent  from  selling,  although 
she  had  agreed    that   they  would  not  sell. 
As  no  one  not   a   party  to  a  contract  can 
violate  it,  every  act  of  defend.Tut's  former 
agents  contrary  to  her  covenant  was  a  vi- 
olation thereof  by  her,  whether   she  knew 
of  it  or  assented  to  it  or  not.     Whenever 
that  was  done  which   she   agreed   should 
not  be  done,  it  was  a  breach  of  a  covenant 
by  her,  even  if  the  act  was  contrary  to  her 
wishes,  and  in  spite   of   her  efforts  to  pre- 
vent it.     Her  covenant  was  against  a  cer- 
tain  act  bv  any  one  of  four  persons,  in- 
cluding   herself.     Two    of    those    persons 
separately    did    the    act    which    she  had 
agreed    that  neither   of   them   should  do, 
and  thus  there  was  a  violation  of  the  cove- 
nant by  her,  the  same  as  if  she  had  done 
the  act  in   pei'son.     The  argument  of  the 
learned  counsel  for  the  defendant  that  the 
contract  fixed  a  sum  to  be  paid   in  case  of 
a  violation   by  the  defendant,  but  not  in 
case  of  a  violation  "by  the  other  parties," 
while  plausible,  is  unsound,  for  there  were 
no  "other  parties"  who  could   break   the 
covenant.     She  was  the  sole  covenantor, 
and  unless  she  kept  the  covenant  she  broke 
it;  and  she  did  not  keep  it.     As  the  actual 
damages    for    a  breach   of  the  covenant 
would   necessarily    be  "  wholly  uncertain, 
and  incapable  of  being  ascertained  except 
by  conjecture,  "we  think  that  the  parties  in- 
tended   to   liquidate  them  when  they  pro- 
vided that  the  sum   named  should   be  "as 
stipulated  damages."    Theuse  oftheword 
"penalty  "  under  the  circumstances  is  not 
controlling.    Bagley   v    Peddle,   16  N.  Y. 
469;    Dakin    v.   Williams.    17    Wend.    448, 
affirmed   22  Wend.  201 ;  Wooster  v.  Kisch, 
26  Hun,  61.     As   there  is  no  other  question, 
that    requires    discussion,    the    judgment 
should    be   affirmed,  with   costs.     All  con- 
cur, except  Brown  J.,  not  sitting. 


204 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


CONDON  V.  KEMPER. 

(27  Pac.  829,  47  Kan.  126.) 

Supreme  Court  of  Kansas.    Oct.  10,  1891. 

Error  from  district  court,  Labette  coun- 
ty ;  George  Chandler,  Judsf- 

This  was  an  action  brought  in  the  dis- 
trict court  of  Labette  county  by  L.  H. 
Kemper  asainst  C.  M.  Condon  to  recover 
g;.')U()  as  li(]uidated  damajres  for  the  alleg^ed 
breach  of  tlie  followinj;  written  contract, 
to-wit:  "Tliis  agreement  between  L.  H. 
Kem])er  and  C.  M.  Condon  witnesseth, 
that  wliereas,  the  said  Kemper  has  sold 
i;o  said  Condon  hjt  7,  block  3N,  in  Oswego, 
Kansas,  said  Condon,  as  a  part  of  the  con- 
sideration therefor,  agrees  to  erect  thereon 
a  two-story  stone  or  brick  building,  not 
less  than  lUO  feet  deep,  within  six  months, 
and  to  give  use  of  tiie  north  wall  thereo! 
to  said  Kemper;  or  else  remove  the  house 
now  on  lot  H,  in  said  block  o8,  three  feet 
north  of  where  it  now  stands,  as  said 
Condon  shall  elect  to  do,  and  put  said 
building  in  as  good  condition  as  it  is  in  its 
jiresent  location.  It  is  mutually  agreed 
between  said  parties  that  a  failure  on  the 
part  of  said  Condtni  to  perform  these  ob- 
ligations shall  entitle  said  Kemper  to  re- 
■cover  from  him  the  sum  of  five  hundred 
dollars  as  liquidated  and  ascertained 
damages  for  the  breach  of  this  contract. 
C.  M.  Condon.  Oswego,  Kansas,  March 
11,  1887."  The  defendant  answered  as  fol- 
lows: "Said  defendant  admits  the  execu- 
tion and  delivery  of  the  writirig  maiked 
'  Exhibit  A.' attached  to  and  made  part 
of  jjlaintiff's  i)etition,  but  he  alleges  the 
fact  to  be  that  said  writing  was  executed 
and  delivered  under  a  misapprehension 
and  a  mistake  of  the  facts  in  reference  to 
the  subject-matter  of  the  transaction 
therein  referred  to  as  they  actualh'  exist- 
ed, and  that  but  for  such  mistake  such 
writing  would  not  have  been  executed. 
Defendant  alleges  that  i)laintiff  was  the 
owner  of  lots  (i  and  7,  in  block  38,  in  the 
city  of  Oswego,  Kansas.  That  the  frame 
house  mentioned  in  said  writing  belonged 
to  plaintiff,  and  was  appurtenant  to  said 
Jot  0.  That  defendant  iiegotiated  for  and 
purchased  from  plaintiff  said  lot  7  with  a 
view  of  erecting  thereon  a  stone  or  brick 
building.  That  at  the  time  of  purchasing 
said  lot  7,  and  of  executing  and  delivering 
said  writing,  both  plaintiff  and  defendant 
understood  and  believed  that  said  frame 
house,  mentioned  in  said  writing,  and 
which  belonged  on  and  was  appurtenant 
to  said  lot  (),  stood  on  the  line  between 
said  lets  C)  and  7;  the  main  part  of  it  be- 
ing, as  said  parties  supposed,  on  lot  (i, 
and  about  two  or  three  feet  in  width  of  it 
standing  on  said  lot  7.  That  to  permit 
defendant  to  build  on  his  said  lot  7  would 
necessitate  the  removal  of  said  house,  as 
said  parties  believed,  some  three  feet  to 
the  north.  That  plaintiff  sold,  and  de- 
fendant bought,  said  lot  under  such  belief. 
That  plaintiff,  in  negotiating  for  the  sale 
of  said  lot  7,  objected  to  being  put  to  the 
expense  of  i-emoving  said  house  so  that  it 
M't)uld  all  stand  on  his  own  lot  6,  or  insist- 
ed, if  he  were  put  to  such  expense,  he 
should  be  compensated  therefor;  and  to 
tlris  defendant  assented,  and  agreed  that 
he    would,    at   his    own   expense,    remove 


said  frame  house  so  that  it  should  entirely 
stand  on  said  lot  6,  and  far  enough  across 
the  line  between  said  lots  6  and  7  not  to 
interfere  with  the  erection  of  a  wall  on 
said  line,  and  put  it  in  as  good  condition 
as  it  then  was,  where  it  then  stood  ;  or  if 
lie  should  so  elect,  instead  of  removing 
and  repairing  said  house  as  aforesaid,  he 
might  erect  on  said  lot  7  a  brick  or  stone 
building  not  less  than  100  feet  deep,  and 
give  plaintiff  the  use  of  the  north  wall 
thereof  as  comi)ensation  for  his  moving 
and  repairing  said  house  as  aft)resaid. 
That  it  was  to  meet  such  contingency, 
and  secure  such  end,  that  said  writing 
was  executed  and  delivered.  That  there- 
after this  deiendant  elected  not  to  erect 
said  stone  or  bi'ick  building  on  said  lot  7, 
and  not  t(j  furnish  plaintiff  the  use  of  the 
north  wall  thereof.  That,  by  agreement 
between  said  plaintiff  and  defendant,  said 
block  was  afterwards  surveyed,  and  the 
fact  was  then  ascertained  that  said  frame 
building  did  not  stand,  as  both  of  said 
parties  had  supposed  it  did,  across  the 
line  between  said  lots  G  and  7,— a  part  on 
6  and  a  part  on  7, — but  that  it  all  then 
stood  on  said  lot  6,  and  so  far  from  the 
line  between  lots  G  and  7  as  not  to  inter- 
fere with  the  erei^tion  of  a  wall  thereon, 
and  therefore  a  rem  oval  of  said  frame  build- 
ing was  unnecessary,  and  would  be  of  no 
advantage  whatever  to  plaintiff.  De- 
fendant alleges  that  the  only  purpose  on 
the  part  of  plaintiff  or  defendant  in  the 
execution  and  delivery  of  said  writing 
was  to  indemnify  plaintiff  against  cost 
and  expense  in  the  removal  and  repair  of 
said  house  as  aforesaid,  and  that,  had 
plaintiff  desired  its  removal  after  the  fact 
in  reference  to  its  true  location  was  ascer- 
tained, he  could  have  had  it  removed 
three  feet  north  of  whei'e  it  then  stood, 
and  put  in  as  good  condition  as  it  was, 
where  it  then  stood,  at  a  cost  and  expense 
of  not  to  exceed  one  hundred  dollars. 
That  said  house  could,  at  the  tiuie  of  the 
execution  of  suid  writing,  or  at  ixuy  time 
since  then,  have  been  removed  three  feet 
north  of  where  it  then  stood  and  now 
stands,  and  put  in  as  good  condition  as 
it  then  was,  in  its  th«'n  location,  at  a  cost 
of  not  to  exceed  f)ne  hundred  dollars. 
That  in  no  event  could  plaintiff's  dam- 
age, had  he  desired  to  have  had  said  house 
removed,  exceed  one  hundred  dollars. 
That  to  indemnify  against  su(di  possible 
damage  was  the  only  object  in  giving  said 
writing.  Defendant  alleges  that  plaintiff 
has  not  removed  said  house,  and  has  in 
no  way  been  to  any  cost  or  expense  on  ac- 
count of  the  removal  of  said  house,  or  for 
any  other  purpose  referred  to  in  any  way 
in  said  writing.  Defendant  denies  that 
plaintiff  has  suffered  any  damage  on  his 
account,  and  denies  any  liability  to  him 
in  anj'  respect.  Wherefoi-e  defendant  asks 
that  this  cause  be  dismissed,  and  that  he 
recover  his  costs  herein."  The  plaintiff 
replied,  denying  every  allegation  of  the 
answer  inconsistent  with  the  allegations 
of  his  petition.  At  the  February  term, 
1889,  when  the  case  was  called  for  trial, 
the  plaintiff  moved  for  judgment  upon  the 
pleadings;  and  the  court  sustained  the 
motion,  and  rendered  judgment  accord- 
ingly in  favor  of  the  i)laintiff  and  against 
the  defendant  lor  fjOO,  with  interest  and 


LIQUIDATED  AND  UNLIQUIDATED  DAINIACES. 


205 


costs;  tlie  defeniLnnt  oxcci)t(M],  Jind  uftcr- 
vvHi-d.s,  as  plaintiff  in  error,  l)rt)Uf;lit  the 
case  to  tins  court  for  review. 

Case  &  Glasse,  for  plaintiff  in  error.     J. 
H.  Morrison,  for  defendant  in  errcjr. 

VALENTINE,  J.  (after  statins  the  facts 
as  above).  The  substantial  question  in- 
volved in  this  controversy  is  vvliellier  the 
plaintiff  beknv,  L.  H.  Kemper,  nsay  re- 
cover from  the  defendant  I)p1ow,  C.  M. 
Condon,  tlie  sum  of  ^TM)  as  agreed  and  liq- 
uidated damaj^cs,  or  whether  he  can  re- 
cover only  the  amount  of  his  actual  loss 
or  damage  resulting  fi-om  the  breach  of 
tiie  <'ontract  sued  on,  which  amount,  ac- 
cording to  the  facts  of  the  case  as  pre- 
sented to  us,  cannot  exceed  !?10().  The 
contract  ni)on  which  Kemper  seeks  to  re- 
cover contains  the  following  among  other 
stipulations:  "It  is  mutually  agreed  be- 
tween said  parties  that  a  failure  on  the 
part  of  said  Condon  to  i)erform  these  ob- 
ligations shall  entitle  said  Kemper  to  re- 
cover from  him  the  sum  of  five  hundred 
dollars  as  liquidated  and  ascertained 
damages  for  the  breach  of  this  contract.  " 
It  will  be  seen  that  the  parties  themselves 
have  used  the  words  "litjuidated  and  as- 
certained damages;"  but  nearly  all  the 
authorities  agree  that  neither  these 
words,  nor  any  other  words  of  similar 
import,  are  conclusive,  but  that  the 
amount  named,  notwithstanding  the  use 
of  such  words,  may  nevertheless  be  noth- 
ing more  than  a  penalty.  Some  of  such 
authorities  are  the  folk)w>iig:  Lampman 
V.  Cochran,  IG  N.  Y.  275:  Ayres  v.  Pease, 
12  Wend.  393;  Hoag  v.  McGinnis,22  Wend. 
1(J3;  Beale  v.  Hayes,  5  Sandf.  (540;  Gray  v. 
Crosby,  18  Johns.  219;  Jacksou  v.  Baker, 
2  Edw.  Ch.  471  ;  Shreve  v.  Brereton,  51  Pa. 
St.  175;  Fitzpatrick  v.  Cottingham,  14 
Wis.  219;  Fisk  v  (iray,  11  Allen,  132;  Wal- 
lis  V.  Carpenter,  13  Allen,  19;  Ex  parte  Pol- 
lard, 2  Low.  411;  Basye  v.  Ambrose,  2S 
Mo.  39;  Carter  V.  Strom,  41  Minn.  522,43 
N.  W.  Rep.  394;  Schrimpf  v.  Manufactur- 
ing Co.,  S6  Tenn.  219,  fi  S.  W.  Rep.  131  ; 
Haldeman  v.  Jennings,  14  Ark.  329;  Davis 
v.  Freeman,  10  Mich.  1S8;  Hahn  v.  Horst- 
man,  12  Bush,  249;  Low  v.  Nolte,  1(5  111. 
475;  Kemble  v.  Farren,  6  Bing.  141  ;  Da  vies 
V.  Penton,  6  Barn.  &  C.  21(5;  Horner  v, 
Flintoff,  9  Mees.  &  W.  678;  Newman  v. 
Capper,  4  Ch.  Div.  724.  Of  course,  the 
words  of  the  i)arties  with  respect  to  dam- 
ages, losses.,  penalties,  forfeitures,  or  any 
sum  of  money  to  be  paid,  received,  or  re- 
covered, must  be  given  due  consideration, 
and,  in  the  absence  of  anything  to  the  con- 
trary, must  be  held  to  have  controlling 
force;  but  when  i-t  may  be  seen  from  the 
entire  contract,  and  the  circumstances  un- 
der which  the  contract  was  made,  that 
the  parties  did  not  have  in  contemplation 
actual  damages  or  actual  cou)pensation, 
and  did  not  attempt  to  stipulate  with 
i-efereuce  ttj  the  payment  or  recovery  of 
actual  damages  or  actual  compensation, 
then  the  amount  stipulated  to  be  paid  on 
the  one  side,  or  to  be  received  or  recov- 
ered on  the  other  side,  cannot  be  consid- 
ered as  liquidated  damages,  but  must  be 
considered  in  the  nature  of  a  penalty ;  and 
this,  even  if  the  parties  should  name  such 
amount  "liquidated   damages."    The  fol- 


lowing textbooks  upon  this  subject  may 
l)e  examined  with  mucii  profit:  1  Sedg. 
Dam.  (Sth  Ed.)  c.  12,  §§  3^9-427;  1  Suth. 
Dam.  pp.  475-.530.  c.  7,  §  (5;  13  Amer.  &  Eng. 
Enc.  Law,  pp.  S.'>7-.S(;S;  1  Pom.  Eq.  Jur. 
5j 5;  440-447 ;  3  Pars.  Cont.  pp.  i:)()-l(i3,  §  2. 
Tlie  text-books  upon  tliis  subject  unite  in 
saying  that  the  tenih'iicy  and  preference 
of  the  law  is  to  regard  a  stated  sum  as  a 
penalty,  instead  of  liquidated  damages, 
because  actual  damages  can  then  )>e  re- 
covered, and  the  recovery  be  limited  to 
such  damages.  1  Suth.  Dam. 490;  13Amer. 
&  Eng.  Enc.  Law,  pp.  S53,  cSOO.  The  dceis- 
ions  of  this  cciurt  are  also  in  this  ,  .lUio 
line.  The  only  decisions  of  this  court  up- 
on the  sul)ject  of  liquidated  damages  are 
the  following:  Kurtz  v.  Sponable,  (5  Kaii. 
395;  Foote  V.  Sprague,  13  Kan.  1.55;  Rail- 
wav  Co.  V.  Shoemaker,  27  Kan.  (577;  Heat- 
woie  V.  Gorrell,  35  Kan.  (592,  12  Pac.  Rei). 
135.  \ye  are  satisfied  with  the  foregoing 
decisions  of  this  couit,  but  they  do  not  go 
to  the  extent  of  controlling  the  decision 
in  the  present  case.  The  last  case  cited 
is  supported  by  the  following  additional 
cases:  Davis  v.  Gillett.  52  N.  H.  12(5: 
Caswell  V.  Johnson,  5S  Me.  104;  Burrill 
V.  Daggett,  77  Me.  545,  1  Atl.  Rep.  077. 

In  1  Sedgwick  on  Damages  (Sth  Ed.)  the 
following  among  other  language  is  used  : 
"From  the  foregoing  we  derive  the  fol- 
lowing as  a  general  rule  governing  the 
whole  subject:  Whenever  the  damages 
were  evidently  the  subject  of  calculation 
and  adjustment  between  the  parties,  and 
a  certain  sum  was  agreed  upon  and  in- 
tended ascompensation,and  is  in  fact  rea- 
sonable in  amount,  it  will  be  allowed  by 
the  court  as  liquidated  damages  "  Sec- 
tion 405.  "And  here  we  are  brought  back 
t)y  a  somewhat  circuitous  path  to  the 
great  fundamental  principle  which  under- 
lies our  whole  system,  — that  of  compensa- 
tion. The  great  object  of  this  system  is 
to  place  the  plaintiff  in  as  good  a  position 
as  he  would  have  had  if  his  contract  had 
not  been  broken.  So  long  as  parties  them- 
selves keep  this  principle  in  view,  they  will 
be  allowed  to  airree  upon  such  a  sum  as 
will  probahly  be  a  fair  equivalent  of  a 
breach  of  contract.  But  when  they  go  be- 
yond this,  and  undertake  to  stipulate,  not 
for  compensation,  but  for  a  sum  out  of  all 
proportion  to  the  measure  of  liability 
which  the  law  regards  as  compensatory, 
then  the  law  will  not  allow  theagreement 
to  stand.  In  all  agreements,  therefore, 
fixing  upon  a  sum  in  advance  as  the  meas- 
ure or  limit  of  liability,  the  final  question 
is  whether  the  subject  of  the  contract  is 
such  tiiat  it  violates  this  fundamental  rule 
of  compensation.  If  it  does  so,  the  sum 
fixed  is  necessarily  a  penalty,  if  it  does 
not  do  so,  the  question  arises,  as  in  any 
other  contract,  as  to  what  agreement  the 
parties  have  actually  made;  and  here,  as 
In  ad  other  cases,  their  intention,  as  as- 
certained from  the  language  eu.ployed,  is 
a  guide."  Section  40(5.  "  Where  tlie  stipu- 
lated sum  is  wholly  collateral  to  the  ol>ject 
of  the  contract,  being  evidently  inserted 
merely  as  security  for  performance,  it  will 
not  be  allowed  as  liquidated  damages." 
Section  410,  "  Whenever  an  aujount  stip- 
ulated is  to  be  paid  on  the  non-pay- 
ment of  a  less  amount,  or  on  default  in  de- 
livering a  thing  of  less  value,  the  sum  will 


•206 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


generally  be  treated  as  a  penalty."  Sec- 
tion 411.  "AVIienover  tliestipulated  sum  is 
to  be  paid  on  breacli  of  a  contract  of  such 
a  nature  that  the  loss  may  be  much  f;-reat- 
er  or  much  less  than  the  sum,  it  will  not 
be  allowed  as  liciuidated  damages."  Sec- 
tion 412.  "A  sum  fixed  as  security  for 
the  performance  of  a  contract  containing 
a  number  of  stipulations  of  widely  differ- 
ent importance,  breaches  of  some  of  which 
are  capable  of  accurate  valuation,  for  any 
of  wliich  the  stipulated  sum  is  an  excess- 
ive compensation,  is  a  penalty."  Section 
418.  "If  the  contract  is  one  in  which  the 
measure  of  damages  for  part  performance 
is  ascertainable,  and  a  sum  is  stipulated 
for  breach  of  it,  this  sum  will  not  be  al- 
lowed as  liquidated  damages,  in  case  of  a 
partial  breach."    Section  415. 

In  1  Pomei-oy  on  Equity  .lurisprudence 
the  following  language  is  used:  "Where 
an  agreement  contains  provisions  for  the 
performance  or  nonperformance  of  several 
actsof  different  degrees  of  impoi-tance,  and 
then  a  certain  sum  is  stipulated  to  be  paid 
upon  a  violation  of  any  or  all  of  such  pro- 
visions, and  the  sum  will  be  in  some  in- 
tances  too  large,  and  in  others  too  small, 
a  compensation  for  the  injury  thereby  oc- 
casioned, that  sum  is  to  be  treated  as  a 
penalty,  and  not  as  liquidated  damages. 
This  rule  has  been  laid  down  in  a  some- 
what different  form,  as  follows:  Where 
the  agreement  contains  provisions  for  the 
performance  or  non-performance  of  acts 
which  are  not  measurable  by  any  exact 
pecuniary  standard,  and  also  of  one  or 
more  other  acts  in  respect  of  which  the 
damages  are  easily  ascertainable  by  a 
jui-y,  and  a  certain  sura  is  stipulated  to  be 
paid  upoQ  a  violation  of  any  or  of  all 
these  provisions,  such  sum  must  1)6' taken 
to  be  a  penalty.  "  Section  443.  "  Whether 
an  agreement  provides  for  the  performance 
or  non-performance  of  one  single  act,  or  of 
several'distinct  and  separate  acts,  if  the 
stipulation  to  pay  a  certain  sum  of  money 
upon  a  default  is  so  framed,  is  of  such  a 
nature  and  effect,  that  it  necessarily  ren- 
ders the  defaulting  party  liable  in  the  same 
amount  at  all  events,  both  when  his  fail- 
ure to  perform  is  complete  and  when  it  is 
only  partial,  the  sum  must  be  regarded 
as  a  penalty,  and  not  as  liquidated  dam- 
ages."   Section  444. 

In  Sutherland  on  Damagesthe  following 
among  other  language  is  used  :  "  While  no 
one  can  fail  to  discover  a  very  grea  t  amount 
of  apparent  conflift,  still  it  will  be  found 
on  examination  that  most  of  the  cases, 
however  conflicting  in  appeai-ance,  have 
yet  been  decided  according  to  the  justice 
and  equity  of  the  particular  case."  Page 
478.  "To  be  potential  and  controlling 
that  a  stated  sum  is  liquidated  damage, 
that  sum  must  be  fixed  as  the  basis  of 
compensation,  and  substantially  limited 
to  it;  for  just  compensation  is  recognized 
as  the  universal  measure  of  damages  not 
punitory.  Parties  may  liquidate  the 
amount  by  previous  agreement.  But, 
when  a  stipulated  sum  is  evidently  not 
based  on  that  principle,  the  intention  to 
liquidate  damages  will  eithei-  be  found  not 
to  exist,  or  will  be  disregarded,  and  the 
stated  sum  treated  as  a  penalty.  Con- 
tracts are  not  made  to  be  broken;  and 
hence,  when  r)arties  provide  for  consequen- 


ces of  a  breach,  they  proceed  with  less  cau- 
tion than  if  that  event  was  certain,  and 
they  were  fixing  a  sum  absolutely  to  be 
paid.  The  intention  in  all  such  cases  la 
material;  but.  to  prevent  a  stated  sum 
from  being  treated  as  a  penalty,  the  in- 
tention should  be  apparent  to  liquidate 
damages  in  the  sense  of  making  just  cf)m- 
pensation.  It  is  not  enough  that  the  par- 
ties express  the  intention  that  the  stated 
sum  shall  be  paid  in  case  of  a  violation  of 
the  contract.  A  penalty  is  not  converted 
into  liquidated  damages  by  the  intention 
that  it  be  paid.  It  is  intrinsically  a  differ- 
ent thing,  and  theintention  that  it  be  paid 
cannot  alter  its  nature,  A  bond,  literally 
construed,  imports  an  intention  that  the 
penalty  shall  be  paid  if  there  be  default  in 
the  performance  of  the  condition;  and 
formerly  that  was  the  legal  effect.  Courts 
of  law  now,  however,  administer  thesame 
equity  to  relieve  from  penalties  in  other 
forms  of  contract  as  from  those  in  bonds. 
The  evidence  of  an  intention  to  measure 
the  damage,  therefore,  is  seldom  satis- 
factory when  the  amount  stated  varies 
materially  from  a  just  estimate  of  the  actu- 
al loss  finally  sustained."  Pages  480,  481. 
See  also,  especially,  3  Parsons  on  Con- 
tracts   (16th  Ed.,  p.  156  et  seq.) 

Many  courts  hold  that  the  intention  of 
the  parties  must  govern,  but  say  that  if 
the  damages  stipulated  to  be  paid,  re- 
c-eived,  or  recovered  on  the  breach  of  the 
contract  are  out  of  proportion  to  the  act- 
ual damages  that  might  besustained,  then 
the  parties  could  notin  fact  have  Intended 
liquidated  damages,  but  merely  a  penalty, 
whatever  their  language  might  be.  Other 
courts  hold  that  it  makes  no  difference 
what  the  intention  of  the  parties  might 
be;  that  the  nature  of  the  contract  itself 
must  govern,  and  if  the  amountstipulated 
to  be  paid,  received,  or  recovered  is  out  of 
all  i)roport)(m  to  the  actual  damages  that 
might  be  sustained  ;  then  that  such  amount 
must  be  treated  as  a  penalty,  whatever 
may  have  been  the  intention  of  the  par- 
ties'; that  in  fact,  and  in  the  very  nature 
of  things,  such  amount  wc>uld  be  a  penal- 
ty, and  could  not  be  anything  else;  that 
the  parties  could  not  by  misnaming  the 
amount,  and  calling  it  liquidated  damages, 
make  it  such.  In  this  connection,  the 
following  language  of  Judge  Curistiancy, 
who  delivered  the  opinion  of  the  court  in 
the  case  of  Jaquith  v.  Hudson,  5  Mich.  12;{, 
1:56,  1:j7,  is  instructive:  "Again,  the  attempt 
to  place  this  question  upon  the  intention 
of  the  parties,  and  to  make  this  the  gov- 
erning consideration,  necessarily  implies 
that,  if  the  intention  to  make  the  sum 
stipulated  damages  should  clearly  appear, 
the  court  would  enforce  the  contract  ac- 
cording to  that  intention.  To  test  this, 
let  it  be  asked  whether,  in  such  a  case,  if 
it  were  admitted  that  the  parties  actually 
intended  the  sum  to  be  considered  as  stip- 
ulated damages,  and  not  as  a  penalty, 
would  a  court  of  law  enforce  it  for  the 
amount  stipulated?  Clearly,  they  could 
not,  without  going  back  to  the  technical 
and  long-exploded  doctrine  which  gave 
the  whole  penalty  of  the  bond,  without 
reference  to  the  damages  actually  sus- 
tained. They  would  thus  besimply  chang- 
ing the  names  of  things,  and  enforcing, 
i    under   the  name   of  stipulated   damages. 


LIQUIDATED  A^■D  UNLIQUIDATED  DAMAGES. 


207 


what  in  its  own  nature  is  but  a  penalty. 
Tlie  real  question  in  this  class  of  cases  will 
be  found  to  be,  not  wliat  tlie  parties  in- 
tended, but  whether  the  sum  is  in  fact  in 
the  nature  of  a  penalty;  and  this  is  to  be 
determined  by  the  magnitude  of  the  sum, 
in  connection  with  thesubject-matter,  and 
not  at  all  by  the  words  or  the  understand- 
ing of  the  parties.  The  intention  of  tlio 
parties  cannot  alter  it.  While  courts  of 
law  jsave  tiie  penalty  of  tlie  bond, the  par- 
ties intended  the  payment  of  the  penalty 
as  much  as  they  now  intend  the  ])ayment 
of  stipulated  damages.  It  must  therefore, 
.we  think,  be  very  obvious  that  the  actual 
intention  of  the  parties  in  this  class  of 
cases,  and  relating  to  this  point, is  wholly 
inimatorial;  and,  though  the  courts  have 
very  generally  professed  to  base  their  de- 
<'isions  upon  the  intention  of  the  parties, 
that  intention  is  not,  and  cannot  be  made, 
the  real  basis  of  these  decisions.  In  en- 
deavoi'ing  to  reconcile  their  decisions  with 
the  actual  intention  of  the  parties,  the 
courts  have  sometimes  been  compelled  to 
use  language  wholly  at  war  with  any  idea 
of  interpretation,  and  to  say  '  that  the 
parties  must  be  considered  as  not  meaning 
exactly  what  they  say.'  Horner  v.  Flint- 
off,  9  Mees.  &  W.  678,  per  Pahkic,  B.  May 
it  not, be  said,  with  at  least  equal  proprie- 
ty, that  the  courts  have  sometimes  said 
what  thej' did  not  exactly  mean?"  And 
in  the  case  of  Myer  v.  Hart,  40  Mich.  517, 
523,  the  supreme  court  of  Michigan  held  as 
follows:  "Just  compensation  for  the  in- 
jury sustained  is  the  principle  at  which 
the  law  aims,  and  the  parties  will  not  be 
permitted,  by  express  stipulation,  to  set 
this  principle  aside." 

We  might  quote  further  from  the  text- 
books and  the  reported  cases,  but  we  think 
the  foregoing  is  sufficient;  and  from   the 


foregoing  it  certainly  follows  that  the 
plaintiff  below.  Kemper, cannot  "recover" 
"  the  sum  of  $500  as  liquidated  and  ascer- 
tained damages  for  the  breach  of  this  con- 
tract." notwithstanding  such  is  the  lan- 
guage of  the  contract.  If  the  defendant, 
Condon,  had  reuiovt'd  tlH>  building  situat- 
ed on  lot  6  tl)ree  feet  north,  and  had  then 
put  the  same  in  as  good  condition  as  it 
was  before,  he  would  have  so  completed 
his  contract  that  not  one  cent  of  damage 
could  be  recovered  from  him;  and  to  so 
remove  such  building,  and  to  put  it  in  as 
good  condition  as  it  was  before,  would 
not  have  C(jst  to  exceed  $100.  But  sup- 
pose that  Condon  had  removed  the  build- 
ing, and  then  have  failed  to  put  the  same 
in  as  good  condition  as  it  was  before;  he 
would  have  committed  a  breach  of  the 
contract,  but  the  actual  damages  might 
not  have  been  $25.  Then,  should  the 
plaintiff,  Kemper,  recover  the  said  sum  of 
$500?  Or  sui)pose  that  Condon  had  re- 
moved the  housf\  and  attem|«ted  to  put  it 
in  as  good  condition  as  it  was  before,  but 
have  failed  to  repair  a  lock,  or  a  small  por- 
tion of  the  plastering,  or  a  broken,  win- 
dow, which  repairing  might  not  have  cost 
$1 ;  then,  should  Kemper  have  the  right 
to  recover  the  said  sum  of  $500?  All  this 
shows  that  the  parties  did  not  have  in 
contemplation  the  matter  of  actual  com- 
pensatory damages  when  they  stipulated 
that  Kemper  might  recover  .$500  from 
Condon  as  liquidated  and  ascertained  dam- 
ages, in  case  of  a  breach  of  the  contract,  but 
shows  that  in  fact,  though  not  in  words, 
they  fixed  the  sum  of  $500  as  a  penalty  to 
cover  all  or  any  damages  which  might  re- 
sult from  a  breach  of  the  contract.  The 
judgment  of  the  court  below  will  be  re- 
versed, and  cause  remanded  for  further 
proceedings.    All  the  justices  concurring. 


208 


LIQUIDATED  AND  UNLIQUIDATED  DAMAGES. 


SMITH  V.  BERGENGREN. 

(26  N.  E.  G90,  153  Mass.  236.) 

Supreme  Judicial  Court  of  Massachusetts. 
Essex.     Feb,  24,  1891. 

Exceptions  from  superior  court,  Essex 
countv;  Edgar  J.  Shekman,  Judge. 

Acti'^on  by  J.  Ranlett  Smitli  against 
Fredericli  W.  A.  Bergengren  for  breacli  of 
an  agreement  not  to  practice  medicine  in 
Gloucester.  Tlie  court  ruled  that  the 
sum  of  .f  2.000.  named  in  the  agreement, 
was  liquidated  damages,  and  defendant 
excepts. 

F.  L.  Evans  and  H.  P.  Moultoo,  for 
plaintiff.  Ira  B.  Kietb  and  TV.  R.  Niles, 
for  defendant. 

HOLMES.  J.  The  defendant  covenanted 
never  to  practice  his  profession  in  Glou- 
cester so  long  as  the  plaintiff  should  be 
in  p)-actice  there,  provided,  however,  that 
lie  should  have  the  rigiit  to  do  so  at  any 
time  aftei-  five  years  by  paying  the  plain- 
tiff $2,000,  "but  not  otherwise.  "  This  sum 
of  .1i;2,(i00  was  not  liquidated  damages; 
still  less  was  it  a  penalty.  It  was  not  a 
sum  to  be  paid  in  case  thedefendant  broke 
his  contract  and  did  what  he  had  agreed 
not  to  do.  It  was  a  price  fixed  for  what 
the  contract  permitted  him  to  do  if  he 
paid. 

The  defendant  expressly  covenanted 
not  to  return  to  practice  in  Gloucester 


unless  he  paid  this  price.  It  would  be 
against  common  sense  to  say  that  he 
could  avoid  the  effect  of  thus  having 
named  the  sum  by  simply  returning  to^ 
practice  without  paying,  and  could  escape 
for  a  less  sum  if  the  jury  thought  the  dam- 
age done  the  plaintiff  by  his  competition 
was  less  than  $2,000.  The  express  cove- 
nant imported  the  further  agreement  that 
if  the  defendant  did  return  to  practice  he 
would  pay  the  pi'ice.  No  technical  words 
are  necessai-y  if  the  intetit  is  fairly  to  be 
gathered  from  the  instrument.  8t.  Al- 
bans V.  Ellis,  16  East.  8.52;  Stevinson's 
Case.  1  Leon.  324;  Bank  v.  Marshall, 40  Ch. 
Div.  112. 

If  the  sum  had  been  fixed  as  liqui- 
dated damages,  the  defendant  would  have 
been  bound  to  pay  it.  Cushing  v.  Drew, 
97  Mass.  44.5;  Lynde  v.  Thompson,  2  Al- 
Ipu,  4.j0;  Holbrook  v.  Tobey,  66  Me. 
410.  But  this  case  falls  within  the  lan- 
guage of  Lord  Mansfield  in  Lowe  v. 
Peers,  4  Burrows,  2225,  2220,  that  if  there 
is  a  covenant  not  to  plough,  with  a  penal- 
ty, in  a  lease,  a  court  of  equity  will  relieve 
against  the  penalty  ;  "but  if  it  is  worded 
'to  paj"^  £5  an  acre  for  every  acre  ploughed 
up,'  there  is  no  alternative;  no  room  for 
any  relief  against  it;  no  compensation. 
It  is  the  substance  of  the  agreement.'" 
See,  also,  Ropes  v.  Upton,  125  Mass.  258, 
260.  The  ruling  excei)ted  to  did  thede- 
fendant no  wrong.  In  the  opinion  of  a 
majority  of  the  court,  the  exceptions  must 
be  overruled. 


l>A.UA(iKS    KOK    XOM'AYMENT   OF    ^iONKV— LNTKUEST. 


2n'J 


BI7J^IIEL  et  al.  v.  SALEM  IMP. 
(25  S.  "e.  304,  ii:?  Va.  354.) 
Milirciiic  Court  of  Appeals  of  Vii-friuia. 


CO. 
.Inly  0, 
counti'; 


Error    to    circuit    court,    Roanoke 
Henry  E.  Rlair,  Judge. 

Action  by  (Jeorse  W.  Bethel  &  Co.  against 
the  Saleui  Inipiovenient  Company,  Tliere 
was  a  judgment  for  plaintiffs,  and  they  bring 
error.     Attirmed. 

G.  W.  &  E.  C.  Hansbroii-h  and  Scott  &. 
Staples,  for  phiintiffs  in  erroi-.  It.  U.  Logan, 
A.  R.  Pugl),  and  I'hlegar  &  Johnson,  for  de- 
fendant  in  error. 

KEITH.  P.  On  the  20th  of  January,  1S91, 
the  Salem  Lnprovement  Company  entered  in- 
to a  contract,  under  seal,  with  George  W. 
Bethel  ik,  Co.,  by  \\hich  the  latter  agreed  to 
make  and  burn  for  the  former  1,.500,U(M)  bricka 
during  the  summer  of  1891;  the  Salem  Im- 
provement Company  agreeing  to  pay  .f().50 
per  1,<XM)  for  the  bricks  in  the  kiln,  provided 
"the  briclc  should  not  nm  less  than  two- 
thirds  well-burned,  hard  bricks;  that  the 
bricks  are  to  be  examined  when  the  kiln  is 
burned,  and,  if  approved  by  the  Salem  Im- 
provement Company,  it  is  to  pay  Geo.  W. 
Bethel  &  Co.  for  three-fourths  of  their  value, 
at  the  price  aforesaid,  but  if,  upon  opening 
the  kiln  and  hauling  the  bricks,  they  are 
found  to  be  imperfect,  and  not  equal  to  the 
standard  above  named,  the  Salem  Improve- 
ment Company  shall  have  the  power  of  re- 
jecting them."  George  W.  Bethel  &  Co., 
under  this  contract,  burned  803,491  bricks, 
and  received  therefor  $3,212.31.  A  disagree- 
ment having  arisen  between  the  parties  as  to 
their  rights  under  this  contract,  G.  W.  Bethel 
&  Co.  on  the  5th  day  of  March,  1892,  brought 
an  action  of  covenant  against  the  Salein  Im- 
provement Company,  and  after  setting  out  in 
their  declaration  the  terms  of  the  contract 
just  stated,  and  referring  to  the  contract  it- 
self for  the  complete  provisions  thereof,  tliey 
aver  that,  except  in  so  far  as- they  have  been 
prevented  by  the  defendant,  they  have  al- 
ways well  and  truly  performed  all  things  in 
the  said  contract  on  their  part  to  be  done,  ac- 
cording to  its  tenor  and  effect,  but  that  the 
defendant  has  not  hitherto  performed  and 
kept  its  covenants  in  the  said  contract  con- 
tained, according  to  the  true  intent  and  mean- 
ing of  the  same,  "'in  this:  that  after  the  said 
plaintiff's  had.  according  to  the  tenor  of  the 
contract  aforesaid,  manufactured  8(  •.■1.491 
bricks,  and  when  thej'  were  proceeding  with 
the  manufacture  of  the  residue  of  the  said 
1,.500,000  bricks,  the  said  tlefendant  notihed 
the  plaintiffs  that  it  would  not  purchase  any 
more  of  the  said  bricks  than  had  already  been 
made,  and  to  discontinue  the  manufacture  of 
the  same,  and  that  the  said  defendant,  al- 
though the  said  803,491  bricks,  made  ac- 
cording to  this  contract,  were  kilned  on  the 
said  premises  according  to  the  provisions  of 
the  said  contract,  tlie  said  defendant  hatli  not 
paid  to  the  said  plaintiffs  the  sum  of  ^\\.'>0 
LAW  DAM.2d  Ed. -14 


per  thousand  for  1,500,000  bricks  above  men- 
tioned, nor  any  part  of  said  sum,  except  the 
sum  of  ii;3.212.31,  whereby  the  plaintiffs  have 
been  damaged  on  account  of  the  failure  to 
pay  for  the  bricks  actually  manufactured  as 
aforesaid,  by  the  outlay  necessarily  incurred 
by  them  in  tlie  preparation  for  the  manufac- 
ture of  the  residue  of  the  said  bricks,  and  the 
failure  of  the  defendant  to  allow  the  plain- 
tiffs to  continue  the  manufacture  of  tlie  resi- 
due of  tlie  said  1,500,000  bricks,  or  to  pay  the 
plaintiffs  their  reasonable  proht,  to  wit,  the 
sum  of  $3  per  tliousand  for  the  same  to  be 
manufactured."  The  second  count,  after  set- 
ting out  the  contract,  states  the  breach  as 
follows:  "In  this:  tJiat  the  said  defendant, 
as  soon  as  the  said  plaintiffs  liad  manufac- 
tured the  803,491  bricks  mentioned  in  the  hrst 
count,  and  when  they  had  gone  to  the  ex- 
pensive preparation  to  manufacture  the  resi- 
due of  the  l,.5at,000  aforesaid,  and  were  pro- 
ceeding with  the  manufacture  of  the  same, 
the  said  defendant  notihed  the  said  plaintiffs 
not  to  manufacture  any  more  bricks  than  they 
had  already  manufactured,  and  that  it  would 
nut  purchase  nor  pay  for  any  bricks  there- 
after manufactured;  and  the  said  defendant, 
although  the  said  plaintiffs  had  manufa('- 
tured  and  kilned  the  said  803.491  bricks, 
which  were  not  less  than  two-thirds  well- 
burned,  hard  bricks,  and  had  in  every  way 
complied  with  the  said  contract  on  their  part 
to  be  performed,  except  as  aforesaid,  hath  not 
paid  to  the  said  plaintiffs  the  suiu  of  .fO.SO 
per  thousand  for  1,500,00<J  bricks  as  afore- 
said, or  any  part  thereof,  except  the  sum  of 
$3,212.31,  in  the  first  cuimt  luentioned."  The 
third  count,  after  reciting  the  contract,  .states 
the  breach  thereof  in  the  following  language: 
"In  this:  that  the  said  defendant  hath  not 
purchased  of  the  said  plaintiff's  the  said  1.- 
500,(X>0  bricks,  nor  paid  to  the  said  plaintiffs 
the  said  sum  of  $0.-50  per  thousand  for  said 
1,.500,000  bricks,  whereby  the  said  plaintiffs 
were  put  to  heavy  costs  and  expenses,  and  in- 
curred heavy  losses,  in  and  aboitt  performing 
the  covenant  in  the  said  contract  on  their 
part  to  be  performed,  to  wit,  the  stim  of 
$4,000.00."  To  this  declaration  the  defendant 
filed  several  pleas,  about  which  no  question 
was  made,  and  upon  these  pleas  the  plaintiff's 
joined  issue;  and  thereupon  a  jury  was  im- 
paneled, which,  after  hearing  the  evidence, 
and  the  instructions  from  the  cotirt,  found  a 
verdict  for  the  plaintiff's,  and  assessed  their 
damages  at  the  stmt  of  $4,000.  The  defend- 
ant moved  for  a  new  trial,  which  the  cotirt. 
after  consideration,  granted,  upon  the  ground, 
as  stated  in  its  order,  that  it  had  erroneously 
instructed  the  jury.  To  the  ruling  of  the 
coiut  setting  aside  the  verdict,  the  plaintiffs 
excepted.  At  a  subsequent  term  the  whole- 
matter  of  law  and  fact  arising  upon  the  case^ 
was  submitted  to  the  judge  on  the  evidence; 
given  at  the  former  trial,  as  the  saiue  ap- 
pears in  tlie  bill  of  exceptions  filed  at  that 
term.  Thereupon  the  cotirt  proceeded  to  give 
judgment  for  the  plaintiff's  in  the  sum  of  $1,- 


210 


DAMAGES    FOR    NONPAYMENT   OF   MONEY— INTEREST. 


403.04.  with  legal  Interest  thereon  from  Jan- 
uary 1,  1802,  till  paid,  and  their  costs  therein 
expended.  The  plaintiffs  again  excepted,  and 
tendered  their  bill  of  exceptions,  which  was 
allowed  by  the  court,  whereupon  the  plain- 
tiffs applied  to  one  of  the  judges  of  this  court 
for  a  writ  of  error,  which  was  granted. 

The  errors  assigned  here  are — First,  to  the 
action  of  the  court  in  setting  aside  the  ver- 
dict rendered  in  behalf  of  the  plaintiffs,  their 
cauutention  being  that  there  was  no  error  in 
the  instructions  given  by  the  court,  and  that 
it  should  have  given  judgment  in  their  favor 
upon  the  verdict  as  rendered  by  the  jury; 
and,  secondly,  that  it  was  error  in  the  court 
to  give  its  final  judgment  for  $1,403.04,  but 
that  it  should  have  been  for  the  sum  pf  ^3,- 
74().07,  with  interest  from  January  1,  1892, 
till  paid. 

The  instruction  given  by  the  court,  and 
which  it  afterwards  decided  was  erroneous, 
is  as  follows:  "The  court  instructs  the  jury 
that  if  they  believe  from  the  evidence  that 
the  plaintiffs,  up  to  the  time  they  stopped 
the  manufacture  of  bricks,  had  been  manu- 
facturing them  according  to  the  requirement 
of  the  contract,  or  that  the  bricks  so  manu- 
factured had  been  accepted  by  the  defendant, 
and  that  the  defendant  refused  and  failed 
to  pay  the  plaintiffs  the  sums  of  money,  if 
any,  due  them  under  said  contract,  as  the 
said  sums  became  due,  and  by  reason  of 
such  failure  the  plaintiffs  were  forced  to 
stop,  and  did  stop,  the  manufacture  of 
bricks,  then  the  plaintiffs  are  entitled  to 
recover  for  the  price  of  the  bricks  manu- 
factured by  them,  according  to  the  said  con- 
tract, and  for  the  profit  on  the  difference 
between  the  number  of  the  bricks  so  manu- 
factured by  them,  and  l,5iXt,0(>0  bricks,  man- 
ufactured according  to  the  terms  of  the  con- 
tract; and  in  estimating  such  profit  the 
jury  shall  place  the  bricks  at  the  price  fixed 
in  the  said  contract,  and  deduct  therefrom 
the  cost  of  said  bricks,  as  they  shall  believe 
such  cost  to  be  from  the  evidence."  This 
instruction  is  predicated  upon  the  perform- 
ance on  the  part  of  the  plaintiffs  of  the  con- 
ditions set  out  in  their  covenant,  and  upon 
the  failure  of  the  defendant  to  pay  to  the 
plaintiff.s  the  sums  of  money  due  them  un- 
der the  contract,  as  the  same  became  paya- 
ble. It  is  claimed  by  the  defendant  in  er- 
ror that  this  instruction  was  erroneous,  for 
two  reasons:  First,  that  there  was  no  such 
issue  presented  by  the  pleadings;  the  breach 
laid  in  the  declaration  l>eing  that  the  defend- 
ant had  failed  to  perform  the  covenants  in 
the  said  contract  on  its  part  to  be  performed, 
in  this:  "That  the  said  defendant  notified 
the  plaintiffs  that  it  would  not  purcliase  any 
more  of  the  said  bricks  than  had  already 
been  mad(>.  and  to  discontinue  the  manufac- 
ture of  tlie  same."  The  tlieory  upon  which 
this  action  was  brought,  as  appears  from  the 
declaration,  was  that  the  plaintiffs  were 
entitled  to  recover  because  the  defendant 
had   broken  its   contract,    not    by    failure  to 


pay  for  the  bricks  manufactured,  but  by  its 
notification  to  the  plaintiffs  that  it  would 
not  purchase  any  more  of  the  bricks  than 
had  already  been  made,  and  to  discontinue 
the  manufacture  of  the  same.  Had  this 
breach  been  established  by  the  evidence, 
there  is  abundant  authority  to  warrant  the 
verdict  and  judgment  for  the  plaintiffs,  upon 
proper  insti-uctions;  but,  as  has  already  been 
observed,  the  instruction  under  consideration 
is  predicated  solely  upon  the  performance 
by  the  plaintiffs  of  the  covenants  and  con- 
ditions to  be  performed  on  their  part,  and 
the  refusal  and  failure  of  the  defendant  to 
pay  to  the  plaintiffs  such  sums  of  money 
as  were  duo  them  under  the  contract,  as 
the  same  became  payable.  The  failure  to 
pay  the  money  is  the  cause  alleged  in  the 
instruction,  that  forced  the  plaintiffs  to  stop 
the  manufacture  of  the  bricks,  and  which 
entitles  the  plaintiffs  to  recover,  not  only 
for  the  bricks  manufactured  by  them  accord- 
ing to  said  contract,  but  for  the  profit  on 
the  difference  between  the  number  of  the 
bricks  so  manufactured  by  them,  and  the 
1.500,000  bricks  manufactured  according  to 
the  terms  of  the  contract,  to  be  ascertained 
by  placing  the  bricks  at  the  price  fixed  in 
the  contract,  and  deducting  therefrom  the 
cost  of  the  bricks  as  shown  by  the  evidence. 
For  the  breach  of  contract  to  pay  money, 
no  matter  what  the  amount  of  inconvenience 
sustained  by  the  plaintiff^  the  measure  of 
damages  is  the  interest  of  the  money  only. 
Wood's  Mayne,  Dam.  (1st  Am.  Ed.)  p.  15. 
That  this  is  the  rule  is  admitted.  That  there 
are  exceptions  to  it  may  also  be  conceded, 
and  it  is  earnestly  contended  on  behalf  of 
plaintiff's  in  error  that  the  case  before  us 
comes  within  the  exception,  and  not  within 
the  rule.  In  support  of  this  contention  the 
case  of  Masterton  v.  Mayor,  etc.,  7  Hill,  61, 
is  relied  upon.  That  was  an  action  of  cove- 
nant, on  an  agreement  whereby  the  plaintiffs 
undertook  to  furnish,  cut,  fit,  and  deliver  all 
the  marble  to  build  the  city  hall  of  Brooklyn, 
to  be  of  the  best  kind  of  white  marble,  from 
Kain  &  Morgan's  quarry,  for  which  the  de- 
fendants agreed  to  pay  a  certain  sum  in  in- 
stallments, payable  at  different  stages  in  the 
erection  of  the  building.  The  defendants 
suspended  work  on  the  building,  for  the 
want  of  funds,  and  refused  to  receive  or  pay 
for  any  more  marble.  This  was  the  breach 
complained  of.  Part  of  the  marble  had  at 
that  time  been  delivered  and  paid  for,  anoth- 
er part  was  ready  for  delivery,  but  the  great- 
er part  had  not  yet  been  procured  and  pre- 
pared for  delivery.  The  plaintiffs,  as  a  part 
of  their  case,  put  in  evidence  articles  of 
agreement  between  them  and  Kain  &  Mor- 
gan, made  on  the  faith  of  the  agreement  be- 
tween the  plaintiffs  and  the  defendant, 
whereby  Kain  <Jc  Morgan  covenanted  to  fur- 
nish, in  blocks  prepared  for  cutting,  all  the 
marble  required  to  fulfill  the  plaintiffs'  con- 
traet,  and  the  plaintiffs  agreed  to  pay  tliem 
a  certain  sum  therefor,  out  of  the  sum  agreed 


DAMACKS    I'(MJ    .\(  »M'A  VM  i:.\  T    nl"    .MO.NKV     IXI  lOKPJST. 


211 


to  be  paid  by  the  defi'iulaiits,  uiul  in  similar 
installments,    but    expressly    stipulated    that 
the  said   Kain  &   Morsan  should  not  look  to 
the  plaintiffs,  except  to  the  funds  as  supplied 
by    the    defendants.     The    circuit    judge    in- 
structed the  jury  that  the  plaintiffs  were  en- 
titled to  recover  the  profits  whicli  would  liave 
accrued   to   them   from   the  actual   perform- 
ance of  the  contract,  and  that,  as  the  rough 
niaible  was  to  be  procured  from  Kain  iV:  Mor- 
jKan's  quarry,  the  contract  was  to  be  deemed 
a  1  art  of  the  performance  of  the  plaintiffs' 
contract,  and   the  plaintiffs   were  entitled  to 
recover   from   the    defendants    the    daniMj^es 
for  which  they  would  be  liable  to  Kain  «S:  Mor- 
ga\i  on  that,  contract.     There  was  a  verdict 
for  the  plaintiffs  for  a  large  amount,  gre.-itly 
exceeding    the    loss    of   the    marble   actually 
on    hand.     The   defendants   appealed.     It    is 
obvious  that  the   ground   of  complaint  here 
was  not  the  failure  to  pay  for  the   marble 
already  cut  and  delivered,  but  the  ground  of 
complaint,  and  the  breach  alleged,  were  that 
the  defendants  refused  to  receive  or  pay  for 
any  more  marble,   want  of   funds  being  al- 
leged as  the  cause.     The  only  item  of  dam- 
age in  which  the  failure  on  the  part  of  the 
defendants  to  pay  money  cuts  any  figure  was 
the  damage  growing  out  of  the  contract  with 
Kain  &  Morgan,   with   whom  plaintiff's   had 
contracted,  and  whom  they  were  to  pay  in 
installments  similar  to  the  installments  due 
the  plaintiffs  from  the  defendants;    but  the 
circuit   court   was   reversed   in  the  court   of 
appeals  for  having  allowed  this  damage  to 
be   computed    in    the    verdict.    Chief   Justice 
.Nelson  saving.   "I  am  unable  to  comprelieiu! 
how   these   can   be   taken   into   the  account, 
or  become   the   subject-matter  of  considera- 
tion at  all,   in  settling  the  amount  of  dam- 
ages  to  be    recovered   for   a   breach   of    the 
principal  contract."     So  this  may  be  laid  out 
of  the  case  altogether.     Said  the  chief  jus- 
tice:   "The  damages  for  the  marble  on  hand, 
ready  to  be  delivered,  was  not  a  matter  in 
dispute  on  the  argument.    *    *    *    The  con- 
test arises  out  of  the  claim  for  damages  in 
respect  to  the  remainder  of  the  marble  which 
the    plaintiff's    had    agi'eed    to    furnish,    but 
which  they  were  prevented  from  furnishing 
by  the  suspension  of  the  work  in  July.  18.S7. 
This  portion   was  not  ready   to  be  delivered 
at  the  time  the  defendants  broke  up  the  con- 
tract,   but    the   plaintiff's    were    then    willing 
and    oft'ered    to    perform,    in    nil    tilings,    on 
their  part,   and  the   case  assumes   that   they 
were  possessed  of  sufficient  means  and  abil- 
itj'  to   have   done  so."     Not    that   the   means 
and  ability  were  to  be  obtained  from  the  de- 
fendants in  the  form  of  the  payment  of  the 
installments  as  the  work  became  due.  as  i)r<> 
vided  in  the  contract,  but  that  the  plaintiffs 
were  possessed  of  sufficient  means  and  abil- 
ity,  independent  of  what  they   were   to   re- 
ceive  from   the    defendants,   to    perform   all 
things   on  their  part  to  be  performed,    h.'id 
they  been  permitted  to  do  so.  but  they  were 
not  allowed  to  perform  the  contract,  the  de- 


fendants refusing  to  receive  or  pay  for  any 
more  niarblc;  but  it  was  that  refusal  alleged 
and  proved  whicli  constituted  the  breach  for 
which  the  plaintiffs  were  in  that  case  per- 
mitted to  recover.  So  far  from  being  an 
authority  for  the  plaintiff«,  it  seems  to  us 
that  it  can  be  relied  upon  to  establish  the 
contrary  doctrine. 

The  case  of  McElwee  v.  Improvement  Co., 
reported  in  4  C.  C.  A.  525,  54  Fed.  G27,  is, 
upon  its  face,  a  mere  dictum  upon  the  point 
under  consideration.  In  that  case  a  land 
company,  in  order  to  procure  the  erection  of 
a  mill  near  its  land,  contracted  to  pay  a  bonus 
to  the  manufacturer,— a  fixed  sum  to  be  paid 
when  the  latter  was  ready  to  begin  work 
thereon,  and  the  rest  in  installments  as  the 
work  progressed.  The  first  installment  w:is 
promptly  paid,  but  two  others  were  earnefl, 
and  not  paid,  whereupon  the  manufacturer 
ceased  work,  and  sued  for  damages  for  lireacli 
of  contract.  It  appeared  that  his  entire  out- 
lay and  expenses  were  less  than  the  first  in- 
stallment received,  and  there  was  no  jn-oof 
of  loss  or  profits.  Held,  that  he  could  recover 
nothing.  The  proposition  upon  which  the 
plaintiff  in  error  relies  here  is  stated  hypo- 
theticjilly  by  the  court  in  that  case,  was  not 
necessaiy  to  a  decision  of  the  case,  and  is 
a  mere  obiter  dictum. 

Kendall  Bank-Note  Co.  y.  Commissioners 
of  the  Sinking  Fund,  79  Va.  563,  was  a  case 
where,  after  having  entered  into  a  contract 
with  the  defendants  in  error,  the  plaintiffs 
in  error,  without  any  sutticient  cause,  revok- 
ed the  contract  which  it  had  made.  There- 
upon the  Kendall  Bank-Note  Company  sued 
in  the  circuit  court  of  the  city  of  Richmond, 
obtained  a  judgment  for  a  large  sum,  and  the 
commissioners  of  the  sinking  fund  brought 
it,  upon  a  writ  of  error,  to  this  court.  Judge 
Lac.v,  in  delivering  the  opinion,  at  page  573, 
says,  "The  plaintiffs  can  recover  for  pro- 
spective profits  when  they  are  prevented  from 
going  on  by  being  ordered  to  desist  from  the 
work,  or  by  the  omission  to  perform  some 
condition  precedent  to  its  further  prosecution 
by  the  other  party."  The  board  of  sinking 
fund  commissioners  had  canceled  the  con- 
tract, and  forbidden  tlie  Kendall  Bank-Note 
Company  to  proceed  further  in  the  execution 
of  it.  Clearly,  therefore,  the  bank-note  com- 
pany had  a  right  to  recover  for  whatever 
profits  would  reasonably  accrue  upon  tlieir 
contract.  There  is  not  one  word  said  in  tliat 
case  about  the  faihire  to  pay  money,  as  con- 
stituting the  cause  of  action,  or  that  the  mere 
failure  to  pa.v  money  would  in  any  case  en- 
title the  plaintiff'  to  recover  any  damages  in 
addition  to  the  jirinciiial  sum,  witli  lawful 
interest  thereon.  It  is  conceded,  however, 
that  there  are  such  cases.  A  familiar  ex- 
ample of  such  a  case  is  that  a  banker  is  lia- 
ble to  damages  for  the  refusal  to  pay  a  check. 
Marzetti  v.  Williams,  1  Barn.  &  Adol.  41.5. 
See.  also,  Tuers  v.  Tuers,  KU)  N.  Y.  im.  2  i\. 
E.  922. 

Many  instances  of  a  like  character  might 


212 


DAMAGES  FOR   NONPAYMENT   OF   MONEY— INTEREST. 


be  given,  but  we  have  seen  no  case  which 
will  sustain  the  instruction  under  considera- 
tion. It  is  the  ordinary  ease  of  a  failure  to 
comply  with  a  contract  to  pay  money  at  a 
stipulated  time.  In  such  eases  the  measure 
of  damages  for  the  breach  of  the  contract  is 
the  principal  sum  due,  and  legal  interest 
thereon.  To  make  a  defendant  responsible 
f(ir  the  profits  which  might  have  accrued  to 
th(>  plaintiff  by  the  use  of  the  money  in  ad- 
dition to  the  interest  would  be  harsh  and  op- 


pressive, and  should  not  be  sanctioned  by  the 
court,  unless  the  plaintiff  can  bring  his  case 
within  some  well-recognized  exception  to  the 
rule. 

For  the  foregoing  reasons,  we  are  of  opinion 
that  the  circuit  court  did  not  err  in  setting 
aside  the  verdict  and  granting  a  new  trial. 
We  are  also  of  opinion  that  there  was  no  er- 
ror in  the  judgment  rendered  by  the  court, 
which  is  fully  supported  by  the  facts  shown 
in  evidence,  and  it  is  affirmed. 


dama(;i<:h  von  nontav.ment  of  moxey-intehest. 


213 


TiOWE  V.  TURPIE  et  al.i 
(44  N.  E.  25.  147  liul.  C,r,2.) 

Supreme  Court  of  lutliiuui.      -May   1.").  l.S'.tC. 

Appeal  from  circuit  court,  Cass  county;  J. 
S.  Frazer.  Special  Judge. 

Action  by  James  H.  Turpie  and  otliers 
against  Hugh  Lowe  for  breach  of  contract. 
From  the  .iudgment  rendered,  defendant  ap- 
peals.     Keversod. 

i:dwiu  P.  Hammond.  Charles  B.  Smart.  Wil- 
liam V.  Stuart.  S.  P.  Thompson,  and  K.  P. 
Pavidson,  for  appellant.  Walker  &  McClintic, 
.1.  IT.  Gould,  and  Elliott  &  Elliott,  for  appel- 
lees. 

MONKS,  J.     On  February  18,  18S6,  appel- 
lees   James    H.    and    William    Turpie    com- 
menced  an   action   against  appellant    in   the 
White  circuit  court.     The  complaint  was  in 
three  paragraphs,  to  each  of  which  the  court 
sustained    a    demurrer    for    want    of    facts. 
Judgment  was  thereupon  rendered  in  favor 
of  this   appellant,    which  on   appeal   in   this 
court  was  reversed,  and  the  court  below  di- 
rected to  overrule  the  demurrer  to  the  com- 
plaint.    Turpie  v.  Lowe,  114  Ind.  37,  15  N. 
E.  834.    After  the  return  of  said  cause  to  the 
court  below  the  demurrer  was  overruled  as 
directed.     About  the  time  of  the  commence- 
ment of  said   action  by  the   Turpies  in  the 
AVhite  circuit  court,   in  February,  1S8G.  two 
other  actions   were   commenced  in   the   said 
court  against  app<>llant,   growing  out  of  the 
same  alleged  transactions  set  up  in  the  ac- 
tion  of   the    Turpies,— one   by   appellee    Cor- 
nelius   M.    Horner,    and    one    by    appellees 
Eumia  J.  and  Mary  F.  Turpie,  wives  of  the 
«aid  James  H.  and  William  Turpie.     These 
three  suits  were  pending  in  1889.  and  were 
sent,  on  change  of  venue,  to  the  Cass  circuit 
court.     In  January,  ISiX),  by  agreement,  the 
three  causes  were  consolidated,  and  the  court 
ordered  that  George  T.  Jones  and  others  be 
made     parties     defendant.      Afterwards,     in 
April,   1890,   James  H.   and   William   Turpie 
tiled    an    amended    complaint,    in    five    para- 
graphs.    The  second  paragraph  was  stricken 
out  on  motion.     Appellant  demurred  to  each 
of    the    remaining    paragraphs    of    the    com- 
I)laint,  for  want  of  facts,  which  demurrer  was 
overruled.     To  this  complaint  appellant  filed 
HP  answer.    Appellees  Emma  J.  and  Mary  F. 
Turpie    in    July,    1890,    filed    their    amended 
<-omplaint,  asking  damages  against  appellant, 
which  he  answered  by  general  denial.     George 
T.    Jones    also    tiled    a    counterclaim    asking 
judgment  against  appellant,  on  which  issue 
was  joined.     The  cause  was  submitted  to  the 
court,  and  at  request  of  appellant  a  special 
finding   was   made,   and   conclusions   of  law 
stated  thereon  against  appellant,  to  each  of 
which   he   at   the  time   saved   an  exception. 
Upon  the  findings  and  conclusions  of  law.  the 
court   on   February    5,   1891,   rendered   judg- 
ment against  appt^llant,  in  favor  of  James  H. 

1  Rehearing  denied. 


and    William   Turpie,    for  $19,77.'»;    in   favor 
of  appellees  Emma  J.  and  Mary  F.  Turpie,  in 
the  sum  of  $10,000;    in  favor  of  api)ellpe  Hor- 
ner, in  the  sum  of  $3,297;    and  in  favor  of 
appellee  Jones,    in   the  sum   of  $800.      From 
these  judgments,  appellant  appealed  to  this 
court,  and  perfected  a  term-time  appeal,  un- 
der section  G38,   Rev.  St.   1881   (section  (550, 
Rev.    St.   1894).     Afterwards,    in    November, 
1891,  by  leave  of  court,  appellant  entered  up- 
on the  tninscript  an  amended  assignment  of 
errors,  adding  the  names  of  additional  per- 
sons as  appellees,  after  which  a  joinder  in 
error  was  endorsed  upon  the  record,  and  sign- 
ed  by   attorneys   for  appellees.    This,    under 
rule  8  of  this  court  (27  N.  E.  iv.),   was  an 
appearance,  and  no  notice  to  appellees  was 
retiulred.     See  Elliott,  App.  Proc.  §§  404-406. 
But  it  is  claimed  by  appellees  that  by  the 
additional  transcript  filed  May  21,  1892.  at- 
tempting to  bring  up  certain  reserved  ques- 
tions of  law,  an  appeal  was  attempted  to  be 
taken  under  section  030,  Rev.  St.  1881   (sec- 
tion   042,    Rev.    St.   1894),    and   this    was   an 
abandonment  of  the  first  appeal.     The  trans- 
script  filed  May  21,  1892,  consisted  of  a  bill 
of   exceptions   purporting  to   contain  a   part 
of  the  evidence  given  in  the  cause,  and  mat- 
ter supposed  to  be  necessary  to  present  cer- 
tain   reserved    questions    of    law,    and    was 
brought  into  this  court,  as  a  part  of  the  rec- 
ord,  by  a   writ  of  certiorari  issued   in   said 
cause  on  application  of  appellant.     It  is  not, 
theref(n'e,  a  separate  or  independent  appeal, 
but  a  part  of  the  record  in  this  cause,  and  is 
not  an  abandonment  of  the  term-time  appeal. 
Whether  that  part  of  the  record  so  brought 
into    this    court    presents    any    question,    or 
wliether  an  appeal  may  be  taken  under  both 
of  said  sections  of  the  Code,  we  need  not,  and 
do  not,  determine. 

It  is  claimed  by  appellant  that  the  court 
erred  in  overruling  the  denun-rer  to  the  first, 
third,  and  fourth  paragraphs  of  the  amended 
complaint  of  James  H.  and  William  Turpie. 
This  court  held  on  the  former  appeal  (Turpie 
V.  Lowe,  114  Ind.  5G-G0,  15  N.  E.  834)  that  the 
part  of  the  complaint  which  alleged  a  sale 
and  conveyance  to  appellant  of  real  estate 
in  Ohio,  and  a  promise  to  pay  the  purchase 
money,  stated  a  good  cause  of  action.  An 
amended  complaint  has  since  been  filed,  but 
the  allegations  concerning  the  sale  of  the 
Ohio  real  estate  are  substantially  the  same 
in  each  paragraph  of  the  amended  complaint 
as  in  the  third  paragraph  of  the  original  com- 
plaint. There  was  therefore  no  error  in  over- 
ruling the  deminrer  to  each  paragraph  of  the 
aminded  complaint  of  James  H.  and  William 
Turpie. 

:\Iany  questions  concerning  the  sufficiency 
of  the  different  pleadings,  and  the  admissi- 
bility of  evidence,  are  discussed  by  counsel; 
but,  as  the  controlling  questions  are  also 
presented  by  the  exceptions  to  the  couclu- 
sicns  of  law,  we  will  consider  them  in  that 
connection.  The  special  finding  of  facts,  and 
the  conclusions  of  law  stated  thereon,  so  far 


214 


DAMAGES   FOR   NONPAYMENT   OF   MONEY— INTEREST. 


a.^   necessary   to   the   determination    of   this 
(•;uise,  are  as  follows: 

Appellees  James  H.  and  William  Turijie 
were  on  December  3,  1885,  and  still  are,  part- 
ners in  business  as  traders  in  real  estate,  and 
were,  as  such  partners,  the  owners,  as  ten- 
ants in  common,  of  real  estate  in  the  counties 
of  White,  Jasper,  and  Starke,  in  Indiana,  and 
in  the  counties  of  Franklin,  Union,  and  Dela- 
ware, in  the  state  of  Ohio,  all  of  which  is 
described  in  the  lindin;?,  and  the  value  of  each 
tract  stated.  A  part  of  said  real  estate  was 
held  by  said  Turples  in  fee  simple.  As  to  a 
part,  they  held  the  equitable  title,  under  con- 
tracts of  purchase.  Part  of  said  real  estate 
was  held  in  the  names  of  others,  as  trustees 
for  the  Turpies.  On  said  day  there  were  ex- 
isting and  valid  judgments  against  the  Tur- 
pies, in  favor  of  divers  persons,  rendered  by 
the  White  circuit  court,  the  Can-oil  circuit 
court,  of  Indiana,  and  other  courts  in  said 
state,  taxes  due  and  impaid,  ditch  assess- 
ments, and  mortgages,  amounting  in  the  ag- 
gregate to  about  .'fil.^.OOO.  That  on  or  before 
December  3,  18.S,j,  the  Turpies  owned  in  fee 
simple  the  undivided  four-hfths  of  a  farm  of 
324  acres  in  Delaware  county,  Ohio,  known 
as  the  Starke  or  Wagner  farm,  which  farm 
was  of  the  value  of  .$17,820.  That  the  other 
one-fifth  of  said  farm  was  owned  by  George 
T.  Jones,  one  of  the  appellees.  That  there 
were  two  mortgages  on  said  farm,— one  in 
favor  of  the  Michigan  Mutual  Insurance  Com- 
pany, upon  283  acres  of  said  fann,  for  .?10,- 
(K)0,  and  one  upon  the  remaining  41  acres  of 
said  farm,  to  one  Stai-ke,  which,  with  accrued 
interest,  amounted  at  said  date  to  about  ?1,- 
IGO.  That  on  the  same  day  appellant  was  the 
owner  in  fee  of  two  one-acre  lots  in  J.  C. 
Reynolds'  Third  addition  to  the  town  of  Mon- 
ticello,  Ind.,  equivalent  in  size  to  10  ordinary 
town  lots,  and  was  also  the  owner  in  fee  of 
the  N.  E.  14  of  the  N.  W.  Vi  of  section  16, 
township  28  N.,  of  range  4  W.,  in  said  county, 
known  as  the  "Nutter  Forty  Acres,"  which 
said  lots  in  Monticello  were  worth  $500,  and 
which  said'40-acre  tract  was  worth  $600. 
That  said  Tuii^ies  were  financially  embar- 
rassed, and  wholly  unable  to  raise  the  money 
to  meet  their  matured  and  maturing  liabili- 
ties. That  the  property  held  by  them  as 
aforesaid  was  of  great  value,  but  so  heavily 
incumbered  by  liens,  some  of  which  were 
overdue,  and  others  soon  to  mature,  that  all 
said  property  was  in  great  danger  of  being  sac- 
rificed for  less  than  its  real  value.  And  said 
appellant  was  a  man  of  large  financial  abihty 
and  credit,  and  the  owner  of  a  large  amount 
of  unincumbered  real  estate  and  personal 
property.  That  he  had  a  large  amount  of 
ready  money  and  Other  assets,  and  was  abun- 
dantly able  to  fulfill  the  contract  hereinafter 
named.  That  on  said  3d  day  of  December, 
]885,  said  Turpies,  in  the  name  of  said  Wil- 
liam Turpie,  entered  into  an  agreement  with 
said  appellant,  in  writing,  respecting  the  said 
Starke  farm,  as  follows: 
"December  3rd,    18S5.     This   Is   to   certify 


I  that  William  Turpie,  of  the  first  part,  and 
I  Hugh  Lowe,  of  the  second  part,  have  this 
I  day  made  a  trade  for  a  farm  in  Delaware 
county,  in  tlie  state  of  Ohio,  known  as  the 
'James  Starke  Farm,'  on  Starke's  Comers; 
tile  undivided  one-half  (i-o)  of  said  three  hun- 
dred and  twenty-four  (324)  acres  to  belong  to 
Hugh  Lowe,  the  other  one-half  (i^)  to  belong 
to  William  Turpie.  Hugh  Lowe  is  to  assume 
the  one-half  (i/4).  twelve  thousand  three  hun- 
dred ($12,.30<:))  dollars,  and  William  Turpie 
the  other  one-half  (i/o).  Hugh  Lowe  to  have 
deed  for  the  whole  324  acres  for  the  present 
time.  The  following  described  property  and 
stock  on  said  farm  is  to  be  held  jointly: 
Seven  head  of  horses;  1  mule;  29  head  of 
cattle  shipped  from  White  county,  Indiana; 
4  cows;  1  heifer;  2  buggies  that  were  already 
on  farm;  13  head  of  cattle  bought  of  Dan 
Hunt;  110  sheep;  all  harness  and  farm  im- 
plements on  farm;  buggies  and  wagons;  all 
wheat  in  the  ground  on  the  farm;  and  all 
grain,  hay,  or  feed  on  the  farm;  and  (1)  one 
lot  on  corner  of  Woodruff  and  High  streets. 
Lowe  is  to  have  one-half  (Yo)  interest  in  said 
lots,  and  the  balance  of  the  G.  A,  Wagner 
lumber  is  to  be  divided  equally  by  Lowe  pay- 
ing freight  to  Columbus,  Ohio.  Turpie  is  to 
make  one  hundred  ($100.00)  dollars  up  in 
trade  to  Lowe.    Wm.  Turpie.    Hugh  Lowe." 

"December  3rd,  1885.  This  is  to  certify 
that  Hugh  Lowe,  of  the  first  part,  deeds,  or 
causes  to  be  deeded,  to  William  Turpie,  at  his 
option,  the  following  described  property:  10 
lots  in  J.  0.  Reynolds'  addition  to  the  town 
of  Monticello,  Indiana;  40  acres,  more  or 
less,  known  as  the  'Nutter  Land,'  near  the 
town  of  Monon,  in  White  county,  Indiana. 
Wm.  Turpie.     Hugh  Lowe." 

He  afterwards  further  agreed  by  parol,  with 
the  consent  of  said  Turpies,  in  consideration 
of  said  Jones  and  wife  joining  in  said  deed 
for  said  farm,  that  said  appellant  would  con- 
vey to  said  Jones  the  imdivided  one-half  (1/2) 
of  said  lots  in  Reynolds'  addition  to  Monticel- 
lo, and  the  undivided  one-half  {V2)  of  said  Nut- 
ter 40  acres,  and  in  consideration  thereof  said 
Jones  and  wife  joined  in  the  execution  of  said 
deed.  It  was  further  agreed  by  parol  be- 
tween said  apiwllant  and  said  Turpies  that 
said  appellant  would  pay  off  all  the  incmu- 
brances  upon  said  farm,  and  it  was  so  stipu- 
lated in  said  deed,  all  of  said  incumbrances, 
over  the  sum  of  $6,1.50,  to  be  repaid  to  him  by 
the  Tiu-pies,  and  until  the  same  was  repaid  he 
was  to  hold  the  title  of  the  whole  of  said 
Starke  farm  as  security  therefor.  That  in 
order  to  balance  accounts  respecting  the  live 
stock  and  personal  property  upon  said  farm, 
and  some  payments  made  at  the  time  Ijy  said 
appellant  for  said  Turpies,  the  said  William 
Turpie  executed  on  the  3d  day  of  Decembei', 
1885,  a  promissory  note  to  said  appellant  for^ 
$580.91.  That  afterwards,  in  said  month  of. 
December,  the  Turpies  entered  into  a  series  of 
agreements  with  appellant,  in  which  it  was, 
in  substance,  provided  that  appellant  should 
pay  all   the  liens  and   incumbrances  on   the 


DAMAGES    FOK    NOXPAYMKNT   OF   MONFA-IXTEKKST. 


215 


real  estate  of  the  Turples  in  Indiana;    and  it 
was  also  agreed  with  the  Turpies  and  Horner 
to  pay  said  Horner  the  amount  of  the  Turi'ies' 
indebtedness  to  him,— about  .?!. ;::>.").— and  to  pay 
the  John  H.  driller  note,  upon  which   Horner 
was   surety,   amounting  to  about  i?l,O()0.     In 
consideration  of  wliich  tlie  Tm-pies   were   to 
execute  to  appellant  their  note  for  their  indebt- 
edness to  him,  except  the  note  of  ^^.jSO.Ol,  and 
from  time  to  time,  as  the  Turpies'  outstanding 
obligations  should  be  paid  by  appellant,  to  ex- 
ecute to  him  other  notes  for  amounts  so  paid, 
all  to  bear  interest  at  8  per  cent,  per  annum; 
and  to  secure  the  amount  they  then  owed  ap- 
pellant, and  the  advances  so  to  be  made  by 
him.  r   -y  were  to  convey,  or  cause  to  be  con- 
veyi'd,  to  him,  their  real  estate  in  Indiana,  in- 
cluding the  four  lots  in   Monon   held  in  the 
name  of  Horner,  and  the  undivided  one-half 
of  the  Ohio  real  estate,  except  nine  lots  in  R. 
P.  Woodruff  Agricultural  College  addition  to 
Columbus,  Ohio,  which  they  reserved  for  their 
wives.     The  Turpies,  in  consideration  of  the 
sum  of  .?20,000  to  be  paid  by  appellant  upon 
liens  and  incumbrances  then  upon  the  Ohio 
real  estate,  sold  to  appellant  the  other  undi- 
vided one-half  of  said  Ohio  real  estate,  which 
they  were  to  convey,  or  cause  to  be  conveyed, 
to  him,  in  fee  simple,  except  that  said  nine 
lots  reserved  for  the  Turpies"  wives  were  to  be 
conveyed  by  one  Woodruff,  who  held  the  le- 
gal title  thereto,  to  appella.ot,  and  he  was  to 
reconvey  the  same  to  the  Turpies'  wives  free 
from  all  incumbrances.     That,  when  the  con- 
veyance should  be  made  to  appellant  for  said 
Ohio  property  so  sold  to  him,  the  undivided 
one-half  thereof  should  be  included  in  the  con- 
veyance, but  to  be  held  by  appellant  as  se- 
curity to  him  for  the  payment  of  said  Indiana 
debts,  and  security  for  any  amount  in  excess 
of  said  ?20,000  which  appellant  might  pay  to 
relieve    said    Ohio    real    estate    from    incum- 
brances;   all  of  which  incumbrances  on  the 
Ohio  real  estate  appellant,  in  pursuance  of  the 
agreement,    was  to   pay.      The   Turpies  con- 
veyed, or  caused  to  be  conveyed,  all  of  said 
Ohio  real  estate,  except  a  tract  known  as  the 
"Mt.  Vernon  Hotel  Property,"     That  the  full 
cnnsidcration    was   paid   by    the   Tiirpies   and 
their  wives  for  the  conveyance  by  appellant 
to  the  Turpies'  wives  of  said  nine  lots,  and 
that  said  lots  were  of  the  value  of  ^10,000. 
That  the  Turpies'  wives  took  immediate  pos- 
session  about  .January  1,  1886,   of  said  nine 
lots,  with  appellant's  consent,  under  his  agree- 
ment to  convey  the  same  to  them.     That  in 
December,   1S85,   the  Turpies  conveyed,   and 
caused  to  be  conveyed,  to  appellant,  all  the 
said    real    estate    in    the   counties   of   Jasper. 
Starke,   and    White,   in  Indiana,   except  four 
lots  in  Monon  held  -by  them  in  the  name  of 
Homer;      and    on    December    10,    1885,    said 
Horner  and  wife  executed  a  deed  to  appellant 
for  said  Monon  lots  held  in  Horner's  name  as 
security    for    the    Turpies'     indebtedness    to 
Horner,  and  to  indemnify  him  from  loss  as 
Their    surety,    who    accepted    said    deed,    and 
promised  Horner  that  he  would  pay  said  Mil- 


ler note.     That  on  December  7,  1885,  the  Tur- 
pies   and    appellant    executed    the    following 
agreement  in  writing:    "Monon,  Indiana,  De- 
(•en)ber  Tlh,   1885.     This   memorandum    is  to 
show  that  all  real  estate  in  Indiana  and  Ohio 
that  James  H.  Turpie  and  William  Turpie  and 
wives  have  conveyed  to  me,  Hugh  Lowe,  in 
the  year  1885,  is  to  be  held  in  trust  for  them, 
and  to  be  held  by  said  Lowe  as  security  for 
all  claims  coming  to  him  from  said  Turpies, 
which  is  evidenced  by  promissory  notes;    and, 
when  said  claims  are  paid  by  said  Turpies, 
said  Lowe  is  to  convey  to  the  Turpies.  or  any 
one  they  suggest,  except  one-half  (.V^)  interest 
in  the  Wagner  farm,   in  Ohio,   which    is  ex- 
plained by  another  contract.     [Signed]    Hugh 
Lowe.      James     Tun^ie.      William     Tmpie." 
That  about  the  1st  day  of-  March,  188(5,  said 
Lowe    took    exclusive    possession    of   all    live 
stock  and  personal   property   on  said    Starke 
farm  belonging  to  himself  and  said  plaintiffs, 
and  converted  the  same  to  his  own  use.     I'he 
same  was  of  the  value  of  ?4,0C»0.     That,  soon 
after  the  deeds  for  all  the  property  aforesaid 
were  delivered  to  said  appellant,  he,  without 
cause,  refused  to  carry  out  or  further  perform 
his  contracts  aforesaid;  and  lie  refused  to  pay 
any  more  of  the  debts,  liens,  or  incumbrances 
on  any  of  said  property,  imd  has  failed  to  pay 
his  said  note  given  to  Horner,  or  said  Miller 
note,  which  last  note  Horner  has  been  com- 
pelled to  pay,  to  wit,  $975,  on  the  ISth  of  Feb 
ruary,  1886.    That,  when  said  appellant  refu.s- 
ed,  he  was  financially  able  to  complete  and 
perform    the   same.     That    said   Turpies   liad 
placed    in   his   hands   all    their  property    and 
means  that  could  in  any  way  be  used  to  pay 
said  debts,  and  were  therefore  wholly  unable 
to  pay   or  discharge   the   same,   or  any    part 
thereof,  all  of  which  was  well  known  to  appel- 
lant when  he  received  the  same,  and  when  he 
made,  and  also  when  he  refused  to  perform, 
the   said   contracts.      That,   before   the   com- 
mencement of  this  suit  by  the  said  TuiiJies, 
they  made  demand  of  appellant  that  he  per- 
form, all  and  singular,  the  said  several  con- 
tracts,   and    each    specification    thereof;     and 
said  appellant  refused,  and  has  ever  since  re- 
fused and  neglected,  to  perform  the  same,  or 
any    part    thereof,    except    as    herein    stated. 
That  before  the  commencement  of   this  suit 
the  said  p:mma  J.  Turpie  and  Ma  17  F.  Turi)ie. 
by  their  agent,  James  H.  Tmpie,  demanded 
from  appellant  the  conveyance  to  them  of  said 
lots  Nos.  244  to  252,  inclusive,  in  Woodruff's 
Agricultural   College  addition   to   the  city  of 
Columbus,    Ohio,    free    of    incumbrances,    as 
specified    in    the    agreement    aforesaid    made 
with   appellant  by   said  James   and   William 
Turpie;    and  said  appellant  refused  to  make 
such  conveyance,  and  has  ever  since  neglected 
and  refused  to  perform  said  contract,  but,  in 
violation  of  his  agreement  aforesaid  to  pay 
incumbrances  thereon,  has  permitted  the  same 
to  be  sold  to  pay  the  incumbrances  that  he 
agreed  to  remove  therefrom,  and  the  title  to 
said  lots  has  passed  to  innocent  purchasers  at 
sheriff's   sale.      That,   before   the  commence- 


216 


damagp:s  fou  nonpayment  of  .money— intekest. 


ineut  of  any  proceedings  against  or  in  favor 
of  said  defendant  George  T.  Jones,  be  demand- 
ed of  said  appellant  the  performance  of  his 
contract  to  convey  to  him  the  undivided  one- 
liaif  of  said  two  acres,  equal  to  ten  lots,  in 
Reynolds'  addition  to  Mouticello,  Ind.,  and  to 
convey  to  him  the  undivided  one-half  of  the 
land  described  herein  as  the  "Nutter  l'\:>rty 
Acres";  and  said  appellant  has  refused  and 
wholly  failed  to  make  such  conveyance,  or 
in  any  way  to  make  compensation  to  said 
Jones  for  the  execution  by  him  and  wife  of 
the  deed  of  the  Starke  farm,  in  Delaware 
county,  Ohio,  executed  oji  the  22d  day  of  De- 
cember, 1885.  That  Lowe  failed  to  pay,  sat- 
isfy, ot  discharge  the  liens  upon  the  property 
in  Ohio  deeded  to  him  as  hereinbefore  found, 
except  as  otherwise  stated  herein,  to  wit,  $4,- 
185.86.  That  after  the  4th  day  of  January, 
1886,  the  several  holders  of  the  liens  upon 
said  Ohio  property  brought  suits  in  the  courts 
of  said  states  having  jurisdiction,  and  obtain- 
ed decrees  and  orders  of  sale  for  the  greater 
part  of  said  property  in  said  Franklin  and 
Union  coimties,  and  the  same  was  sold  upon 
execution,  and  at  judicial  sale,  to  satisfy  the 
liens  thereon  which  said  appellant  had  agreetl 
to  pay,  and  thereupon  the  legal  title  to  all  of 
said  real  estate  in  Ohio  so  sold  was  lost  to 
the  i>laintiffs.  That  the  real  estate  in  the 
state  of  Ohio  conveyed  to  appellant,  and  held 
by  him  as  security  as  aforesaid,  to  wit,  the  un- 
divided one-half  of  all  the  real  estate  in  Ohio 
hereinbefore  described  (except  the  certain 
specified  tracts),  sold  at  judicial  .sales,  was  so 
sacrificed  and  consumed  by  costs  and  ex- 
penses that  it  paid  only  the  simi  of  $22,756.56 
of  the  debts  of  said  Turpies  which  said  Lowe 
had  agreed  to  pay.  That  on  the  3d  of  De- 
cember, 1885,  the  283  acres  of  the  Starke  farm, 
in  Delaware  county,  Ohio,  under  mortgage  to 
the  Michigan  Mutiial  Insurance  Company,  was 
of  the  value  of  ?15,565,  and  that  since  that 
time,  by  reason  of  the  failure  of  said  Lowe 
to  pay  said  incumbrance  remaining  unpaid 
after  the  22d  day  of  December,  1885,  to  wit, 
$10,300,  the  whole  of  said  283  acres  has  since 
been  sold  on  a  decree  of  foreclosure  to  satisfj- 
said  mortgage,  whereby  the  title  to  said  real 
estate  has  been  wholly  lost  to  said  Turpies, 
That  the  Turpies  are  indebted  to  said  appel- 
lant, on  notes  held  by  him,  and  for  moneys 
paid  by  him  for  their  use  in  pursuance  of  .said 
contracts,  and  on  account,  in  the  sum  of  $14,- 
3;'.2.75,  which  is  a  proper  set-off  against  any 
amount  due  .said  plaintiffs  from  him.  That 
prior  to  the  commencement  of  this  suit  said 
Turpies  offered  to  deliver  to  the  defendant 
Lowe  a  deed,  duly  signed  and  acknowledged 
by  their  wives  and  themselves,  conveying  the 
real  estate  in  Knox  county.  Ohio,  known  as 
the  "Mount  'N'ernon  Hotel  Property,"  to  him, 
and  demanded  of  him,  then  and  there,  to 
carry  out  and  perform  his  several  contracts. 
That  the  rental  value  of  certain  lands  of  the 
'J'urpies  in  White  county,  of  which  appellant 
had  possession,  was  ."Rl,120.  That  appellant 
received  $35,  the  proceeds  of  the  sale  of  one 


horse,  the  property  of  the  Turi)ies.  Tliat  by 
reason  of  the  failure  of  said  appellant  to  per- 
form his  said  agreements,  and  the  sale  of 
said  real  estate  by  virtue  of  judicial  process 
resulting  in  conseciuence  thereof,  there  was 
large  loss  and  damage  to  said  James  H.  and 
William  Turpie;  that  is  to  say,  their  real  es- 
tate, of  the  value  of  $32,695,  satisfied'  only 
$13.7tj5.07  of  their  indebtedne.ss.  But  the  same 
sales  of  .said  Lowe's  luidivided  one-half  of  stime 
of  the  same  real  estate,  and  of  the  nine  lots 
to  be  conveyed  to  the  wives  of  said  Turpies, 
realized  a  sum,  which  was  applied  in  payment 
of  said  debts,  enough  to  make  up  the  loss,  ex- 
cept the  sum  of  $6,008.70.  That  the  value  of 
said  one-fifth  of  said  Starke  farm,  conveyed 
by  said  Jones  and  wife  to  Lowe,  subject  to 
the  incumbrance  thereon,  was  at  the  time  of 
said  conveyance,  December  22,  1885,  $S;)0. 
That  the  value  of  attorney's  services  in  the 
collection  of  said  note  from  Lowe  to  Hory.er, 
described  in  said  Horner's  complaint,  is  $300. 

■"And  the  court  now  states  its  conclusions 
of  law  upon  the  foregoing  facis  to  be  as  fol- 
lows: (1)  *  *  *  (2)  That  said  Horner  is 
entitled  to  recover  from  said  Lowe,  upon  said 
promissory  note  given  by  him  to  Horner,  the 
sum  of  two  thousand  and  thirty-three  ($2,- 
033)  dollars,  and,  on  account  of  the  failure 
of  said  Ivowe  to  pay  said  Miller  note,  the 
sum  of  twelve  hundred  and  sixty-four  ($1,- 
264)  dollars.  (3)  That  said  James  H.  Tur- 
pie and  William  Trn-pie  are  entitled  to  re- 
cover from  the  said  Lowe  the  sum  of  nine- 
teen thousand  seven  hundred  and  seventy- 
five  (.$19,775)  dollars,  which  is  due  to  tlie:n 
after  deducting  all  set-offs.  (4)  That  said 
Mary  F.  Turpie  and  Emma  J.  Turpie  are  en- 
titled to  recover  from  said  appellant  the  sum 
of  ten  thousand  ($10,000)  dollars.  (5)  *  *  * 
(6)  That  said  Lowe  be  required  to  convey  to 
said  James  H.  and  William  Turpie  the  undi- 
vided one-half  (i/^)  of  the  northeast  quarter 
(%)  of  the  northwest  quarter  (1/4)  of  sec- 
tion sixteen  (16),  township  twenty-eight  (28) 
north,  range  four  (4)  west,  and  the  undi- 
vided one-half  (14)  of  the  two  (2)  one-acre 
lots  in  J.  C.  Reynolds'  addition  to  Mouticello, 
in  said  county  of  ^V'hite,  owned  by  Lowe  on 
the  od  day  of  December,  18S5.  and  also  the 
whole  of  the  Bradford  and  Braxton  lands, 
and  also  said  lands  in  Starke  county  and  in 
Jasper  county,  Indiana,  conveyed  to  said  ap- 
pellant, and  also  said  lots  in  jNionon.  in  find- 
ing numbered  60  specified,  by  proper  deeds 
of  felease  and  quitclaim.  (7)  That  said  Jones 
is  entitled  to  a  judgment  against  said  Lowe 
for  the  suin  of  $800." 

The  correctness  of  each  of  the  conclusions 
of  law  is  called  in  question  by  the  assign- 
ment of  erroi's.  It  is  earnestly  insisted  by 
appellant  that  the  facts  do  not  sustain  the 
third  conclusion  of  law,— that  the  Turpies  are 
entitled  to  recover  from  appellant  $19,775. 
The  correctness  of  this  conclusion  of  law  de- 
pends upon  what  is  the  proper  measure  of 
damages  under  the  facts  set  forth  in  the  spe. 
cial  finding.     On  the  former  appeal  of  this 


DA.NfAGES    FOK    NONPAYMENT   OF   MONEY— INTEREST. 


217 


<;ause  (Turpie  v.  Lowe,  supra),  tlie  deeds  con- 
veying to  appellant  the  Indiana  and  Ohio  real 
estate  to  secure  an  exisUns  in^lcbtedness,  and 
future  advances  to  pay  liens  sot  out  in  the 
special  finding,  were  liold  to  be  mortgages. 
In  that  case  the  Turpies  claimed  that  they 
were  entitled  to  recover  oitlier  tlic  full 
amount  wliich  the  appellant,  Lowe,  agreed  to 
advance  as  a  loan  in  the  way  of  discharging 
liens  and  debts,  or  the  value  of  the  lands 
conveyed  by  the  deeds.  In  rc^sponse  to  such 
contention  the  court,  on  pages  ~)3,  54,  114 
Ind.,  and  page  834.  15  N.  E.,  said:  "If  we 
are  correct  in  our  construction  of  the  con- 
tract set  up  in  the  complaint,  Lowe's  agree- 
ment to  pay  liens,  etc.,  was  nothing  more 
than  a  contract  to  advance  money  iov  the 
benefit  of  appellant  [the  Turpies],  and  is  the 
same,  in  effect,  as  if  he  had  agreed  to  ad- 
vance money  direct  to  them  as  a  loan.  What- 
ever damages,  therefore,  they  might  recover 
from  Lowe  for  the  refusal  to  make  such  a 
direct  loan  after  having  taken  security  for 
the  same,  they  may  recover  here  nothing 
more."  The  covenant  in  a  deed  absolute  on 
its  face,  but  intended  as  a  mortgage,  or  a 
parol  contract  made  at  the  time  of  the  execu- 
tion of  the  deed,  whereby  the  grantee  agrees 
to  pay  a  debt  of  the  grantor  due  another  per- 
son, cannot  bt  enforced  by  such  person 
against  the  grantee.  Such  an  agreement  is 
nothing  more,  in  effect,  than  an  agreement 
to  advance  the  amount  of  the  debt  or  incum- 
brance as  a  loan  upon  the  security  of  the 
land  conveyed.  Root  v.  Wright,  84  N.  Y. 
72;  Oarusey  v.  Rogers,  47  N.  Y.  233;  Pardee 
V.  Treat,  82  N.  Y.  385.  It  is  clear,  we  think, 
that  the  measure  of  damages  for  the  breach 
by  appellant  of  his  agreement  to  advance 
money  to  pay  liens,  etc.,  set  forth  in  the  find- 
ing, is  the  same  as  for  breach  of  a  contract 
to  loan  money  direct.  This  court  also  held 
in  that  case  that  the  complaint,  so  far  as  it 
rested  upon  the  agreement  of  this  appellant 
to  advance  money,  and  the  deeds  to  secure 
the  same,  only  made  a  case  for  nominal  dam- 
ages, as  no  special  damages  were  shown. 
When  the  case  was  returned  to  the  court  be- 
low, the  Turpies  filed  their  amended  and  sup- 
plemental complaint,  in  five  paragraphs,  as 
heretofore  stat<  1,  in  which  they  declared  up- 
on the  same  oral  contracts,  and  also,  for  the 
first  time,  brought  in  the  written  agreements 
set  out  in  the  special  findings,  they  not  hav- 
ing been  mentioned  in  the  original  complaint. 
In  the  amended  complaint  which  was  filed 
in  April.  ISW,  it  was  alleged  that  the  several 
holders  of  the  liens  on  said  real  estate,  to 
pay  which  appellant  had  agreed  to  advance 
money,  brought  suit  in  the  courts  having  ju- 
risdiction, and  procured  decrees  and  orders 
of  sale,  upon  which  said  real  estate  was 
in  the  year  1S87.  and  the  latter  part  of  the 
year  1S86,  sold  at  sheriffs  sale,  and  the 
money  received  applied  on  said  liens,  and 
sought  thereliy  to  recover,  as  special  dam- 
ages, the  difference  between  the  value  of 
said  real  escate  and  the  amount  for  which 


the  same  sold  at  sheriff's  sale.  It  is  evident 
from  the  special  finding,  and  the  conclusions 
of  law  stated  thereon,  that  the  trial  court 
adopted  this  measure  of  damages.  It  is  the 
rule,  settled  beyond  controversy,  that  the 
damages  to  be  recovered  must  be  the  natural 
and  proximate  x)ns(Hiuences  of  the  breach 
of  the  contract.  Damages  which  are  i-emote 
or  speculative  cannot  lie  recovered.  Fuller  v. 
Cunis,  1()0  Ind.  231),  Cline  v.  Myers,  G4  Ind. 
304;  Loker  v.  Damon,  17  Pick.  284;  Prosser 
V.  Jones,  41  Iowa,  674;  Wire  v.  Foster,  02 
Iowa,  114,  17  N.  W.  174;  Osborne  v.  Poket, 
33  Minn.  10,  21  N.  W.  752.  Hadley  v.  Bax- 
endale,  9  Exch.  341,— the  leading  English 
case,  and  one  followed  by  the  courts  of  this 
country,— lays  down  the  following  rule  con- 
cernmg  the  measure  of  damages:  "Where 
two  parties  have  made  a  contract  which  one 
of  them  has  broken,  the  tlamages  which  the 
other  party  ought  to  receive  in  respect  of 
such  breach  of  conti-act  should  be  such  as 
may  fair'y  and  reasonably  be  considered  ei- 
ther as  arising  naturally  (i.  e.  according  to 
the  usual  course  of  things)  from  such  breach 
of  contract  itse'f,  or  such  as  may  reasonably 
be  supiiosed  to  have  been  in  contemplation  of 
both  parties,  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  the  breach." 
When  one  is  indebted  to  another,  and  fails 
to  pay  the  same  when  due,  the  damages  for 
the  delay  in  payment  are  provided  for  in  the 
allowance  of  interest.  This  is  the  measure 
of  damages  adopted  by  the  law  in  all  ac- 
tions by  the  creditor  against  his  debtor. 
Loudon  V.  Taxing  Dist.,  104  U.  S.  771;  Insur- 
ance Co.  V.  Piaggo,  16  Wall.  378;  Greene  v. 
Goddard,  9  Mete.  (Mass.)  212,  232;  5  Am.  & 
Eng.  Enc.  Law,  p    27,  and  note  2,  p.  25. 

Appellees  admit  the  measure  of  damages 
for  the  failure  of  a  debtor  to  pay  money  when 
due  to  be  as  stated,  but  insist  that  where  the 
obligation  to  pay  money  is  special,  and  has 
reference  to  other  objects  than  the  mere  dis- 
charge of  debts.— as  in  this  case,  to  advance 
or  loan  money  to  pay  taxes  and  discharge 
liens, — damages  beyond  interest  for  delay  of 
payment,  according  to  the  actual  injury,  may 
be  recovered;  citing  1  Suth.  Dam.  p.  164.  §  77, 
where  the  rule  stated  by  appellees  is  approv- 
ed. The  author,  however,  in  the  same  sec- 
tion, says:  "Where  one  person  furnishes 
money  to  discharge  an  incumbrance  upou  the 
land  of  the  person  furnishing  the  money,  and 
the  person  undertaking  to  discharge  it  neg- 
lects to  do  so,  and  the  land  is  lost  to  the  owu- 
er  by  reason  of  the  neglect,  the  measure  of 
damages  may  be  the  money  furnished,  with 
interest,  or  the  value  of  the  land,  according 
to  circumstances.  If  the  landowner  has 
knowledge  of  the  agent's  failure  in  time  to  re- 
deem the  land  himself,  the  damages  will  be 
the  money  furnished,  with  interest.  But  if 
the  landowner  justly  relies  upon  his  agent 
to  whom  he  has  fm'uished  money  to  dis- 
charge the  incumbrance,  and  the  land  is  lost 
without  his  knowledge,  and  solely  through 
the  fault  of  the  agent,  the  latter  will  be  lia- 


!1« 


DAMAGES   FOR   NONPAYMENT   OF   MONEY— INTEllBST. 


ble  for  the  value  of  the  land  at  the  time  it  I 
was  lost."     See  Fontaine  v.  Lumber  Co.  (Mo.   ; 
Sup.)  18  S.  W.  1147.     In  Blood  v.  Wilkins,  43 
Iowa,  565,  Blood  was  the  owner  of  certain 
land  in  Jones  count}',  and  conveyed  the  same 
to  Wilkins  as  security  for  money  advanced 
and  to  be  advanced  by  Wilkins,  and  applied 
in    payment   of    certain   mortgages   and    tax 
liens  upon  the  property.     Part  of  the  money 
was  paid  out  directly  by  Wilkins  in  discharge 
of  liens,  and  a  part  was  retained  by  him.    At 
the  time  of  the  loan  the  land  had  been  sold 
for  taxes,  but  the  period  for  redemption  had 
not  yet  expired.     The  amount  borrowed  was 
enough  to  discharge  all  liens,  and  to  redeem 
from  said  sales.     Wilkins,   after  the  execu- 
tion of  said  deed  given  as  security,  retained 
in  his  hands  the  money  necessary  to  redeem, 
under  an  agreement  with  Blood  that  he  would 
redeem.     Wilkins  failed  to  redeem,  and  tax 
titles  accnied  against  the  land,   whereby  it 
was   lost    to    Blood,    except    40    acres.     The 
court,   in  speaking  of  the  measure  of  dam- 
ages, said:    "There  only  remains  to  be  con- 
sidered   what    is    the    measure    of    liability. 
When  one  person  furnishes  the  money  to  an- 
otlier  to  discharge  an  incumbrance  from  the 
laud  of  the  person  furnishing  the  money,  and 
the  person  undertaking  to  discharge  the  in- 
cumbrance neglects  to  do  it,  and  the  land  is 
lost  to  the  owner  by  reason   of  the  incum- 
brance, the  measure  of  damages  may  be  the 
money  furnished,  with  interest,  or  the  value 
of  the  land  lost,  according  to  circumstances. 
If  tlie  landowner  has  knowledge  of  his  agent's 
failure  in  time  to  redeem  the  land  himself, 
his  damages  will   be   the   money  furnished, 
with  interest.     But  if  the  landowner  justly 
relies  upon  his  agent,  to  whom  he  has  fur- 
nished money  to  discharge  the  incumbrances, 
and  the  land  is  lost  without  his  knowledge, 
and   solely   through  the   fault  of  the  agent, 
then  the  agent  will  be  liable  for  the  value  of 
the  land  lost."     This  language  was  adopted 
by  the  author  of  Sutherland  on  Damages,  in 
stating  the  rule.     See  1  Suth.  Dam.  p.  164,  § 
77.     The  cases  of  Bank  v.  Cook,  49  Law  T. 
(N.  S.)  674,  and  Manahan  v.  Smith,  19  Ohio 
St.  384,  cited  by  appellees,  are  not  in  conflict 
with  Blood  V.  Wilkin.s,  supra,  but  supix)rt  the 
rule  therein  adopted.     In  the  case  of  Bank  v. 
('ook,  supra,  the  bank  made  an  agreement  to 
loan  Cook  a  large  sum  of  money  to  purchase 
a  vendor's  lien  upon  the  real  estate  of  a  cor- 
poration, and  a  number  of  shares  in  said  cor- 
poration.    Cook  relied  upon  the  bank  to  pro- 
vide the   money,   and  did   not   make,   or  at- 
tempt to  make,  arrangements  with  any  other 
person   or   company   to   provide   the   money. 
Tlu;   bank   did   not  provide   the   money,   and 
Cook  was  not  informed  that  it  would  not  do 
so  until  too  late  to  procure  the  money  else- 
where before  the  time  expired  witliin  which 
it  was  necessary  to  complete  the  purchase. 
The  court  held  that  in  case  of  breach  of  con- 
tracts  to  lend    money   the  damages  usually 
given  were  merely  nominal,  for  the  reason 
that,  usually,  if  a  man  could  not  get  money 


in  one  quarter  he  could  in  another,  but  that 
as  Cook  had,  by  the  conduct  of  the  bank  in 
failing  to  inform  him  at  the  proper  time  that 
it  would  not  provide  the  money,  been  depriv- 
ed of  the  opportunity  of  getting  it  elsewhere, 
he  was  entitled  to  recover  more  than  nominal 
damages.      In    Manahan    v.     Smith,     supra. 
Breckinridge  conveyed  to  Manahan  real  es- 
tate in  Indiana  for  real  estate  in  Ohio.    Soon 
after    the    deeds    were    executed,    Manahan 
learned  that  an  attachment  had  been  previ- 
ously levied  on  the  real  estate  in  Indiana  at 
the  suit  of  Breckinridge's  creditors,  whereup- 
on  Breckinridge,   witli   Smith  as  guarantor, 
agreed  in  writing  to  cancel  witliin  six  months 
the  incumbrances  on  the  Indiana  land,  but 
failed  to  do  so;    and  the  Indiana  land  was 
sold  by  order  of  court  in  1856,  without  notice 
to  Manahan,  who  resided  in  Ohio,  and  did 
not   hear   of   the   same   till    several   months 
thereafter.    In  an  action  against  Smith,  guar- 
antor of  the  agreement  of  Breckinridge   ta 
cancel  the  incumbrance  within  six  months, 
the  court  held  that  the  mea.sure  of  damages, 
under  the  circumstances,  was  the  value   of 
the  laud  at  the  time  title  thereto  was  lost, 
and  interest  thereon  until  judgment.     It  will 
be  observed  that  this  was  not  a  contract  to 
loan  money,  but  a  contract  on  the  part  of 
Breckinridge  to  pay  his  own  debt.    The  right 
to  recover  the  value  of  the  land  lost  was  put 
upon  the  ground  that  Breckinridge  permitted 
the  land  to  be  sold  without  giving  notice  to 
Manahan  and  without  giving  him  an  oppor- 
tunity to  discharge  the  incumbrance. 

We  think  the  rule  concerning  the  measure 
of  damages  in  cases  where  one  pei-son  fur- 
nishes the  money  to  another  to  discharge  liens 
on  the  land  of  the  one  furnishing  the  money 
is  correctly  stated  in  Blood  v.  Wilkins,  supra^ 
In  an  action  for  breach  of  a  contract  to 
loan  money  to  pay  liens  or  incumbrances, 
no  more  tlian  nominal  damages  can  be  re- 
covered unless  the  facts  showing  special  dam- 
ages are  alleged  and  proven.  Turple  v.  Lowe, 
supra.  When  the  person  who  contracted  to 
make  the  loan  neglects  or  refuses  to  do  so,. 
and  the  owner  is  compelled  to  procure  the 
money  elsewhere,  the  measure  of  damages 
is  the  difference,  if  any,  between  tlie  inter- 
est he  contracted  to  pay,  and  what  he  was 
compelled  to  pay  to  procur^the  money;  not 
exceeding,  perhaps,  the  highest  rate  allow- 
ed by  law.  2  Sedg.  Dam.  §  6-22.  It  is  not 
necessary  to  determine  whether  the  meas- 
ure of  damages  for  breach  of  a  contract  to 
loan  money  to  pay  liens  in  case  the  land  is 
lost  is  the  same  a.s  in  a  case  of  the  neglect  of 
one  to  whom  money  is  furnished  by  the  land- 
owner to  pay  liens  or  incumbrances,  for  the 
reason  that,  if  it  were  conceded  that  the 
mea.sure  of  damages  in  this  case  was  the 
same  as  it  would  have  been  had  the  Turpies 
furnished  appellant  the  money  to  discharge 
all  said  debts  and  incumbrances,  yet,  under 
the  facts  as  stated  in  the  special  finding,  the 
Turpies  would  not  be  entitled  to  special  dam- 
ages.    To  entitle  any  one  to  recover  more- 


DAMAGES    FOK    XONPAV.MI'.NT   OF   ^[OXEY— INTEREST. 


219 


than  nominal  damages  for  a  breach  of  con- 
tract  to  loan  money  to  pay  inoumbrances,  it 
is  neeessai-y  not  only  to  allege  and  prove  the 
contract  to  loan  the  money,  and  its  breach, 
and  that  tlie  person  who  agreed  to  malie  the 
loan  knew  the  jnirpose  for  which  it  was  to 
be  used,  and  the  necessity  therefor,  but  also 
tliat  tlie  land  was  lost  to  the  owner  by  reason 
of  such  liens  or  incuiubrauces,  and  without 
his  knowledge,  and  solely  through  the  fault 
of  the  person  who  was  to  loan  the  money,  or, 
if  the  landowner  had  notice  of  the  neglect  or 
refusal  to  loan  the  money,  that  it  was  at  such 
a  time  as  to  deprive  him  of  the  opportunity 
to  procure  the  money  elsewhere,  and  pay  said 
liens  or  incumbrances,  or  redeem  the  laud, 
if  sold.  The  facts  found  in  the  special  find- 
ing show  that  appellant  had  refused  to  pay 
any  more  of  said  liens  or  incumbrances,  or 
carry  out  or  further  perform  his  contracts; 
but  they  do  not  show  that  such  knowledge 
was  acquired  by  the  Turpies  too  late  to  give 
them  an  opportunity  to  procure  from  other 
parties  the  money,  and  paj^  said  liens  or  in- 
cumbrances. On  the  contrary,  it  appears 
^  from  the  finding  of  facts  that  appellant,  be- 
tween Januaiy  4,  ISSC.  and  February  18.  1886, 
refused  to  pay  any  more  of  the  debts,  liens,* 
or  incumbrances  on  any  of  said  property 
which  he  had  agreed  to  pay,  aud  refused  to 
carry  out  or  further  perform  his  said  con- 
tracts, and  said  he  would  not  further  exe- 
cute the  same;  that  the  real  estate  in  Indi- 
ana was  sold  in  1880  and  1887,  the  statute 
giving  one  year  from  the  date  of  each  sale  to 
redeem  the  real  estate.  The  suits  to  recover 
the  judgments  and  decrees  upon  which  the 
Ohio  real  estate  was  sold  were  not  commen- 
ced until  after  January  4,  1886.  It  is  shown, 
therefore,  by  the  special  finding,  not  that  the 
Turpies  did  not  know  of  the  refusal  of  appel- 
lant to  pay  said  liens  and  incximbrances  in 
time  to  give  them  an  opportunity  to  procure 
the  money,  but  that  they  had  such  knowledge 
in  ample  time  to  give  them  the  opportunity 
to  procure  the  money  and  pay  said  liens  and 
incumbrances,  and  thus  prevent  the  loss  of 
their  land.  Under  this  state  of  facts,  only 
nominal  damages  could  be  allowed  the  Tur- 
pies on  account  of  the  loss  of  the  lands  held 
by  appellant  as  mortgagee. 

It  is  insisted  by  the  Turpies  that  the  spe- 
cial finding  "that  the  Turpies  had  placed  in 
ajipellant's  hands  all  of  their  property  and 
means  that  could  in  any  way  be  used  to  pay 
said  debts,  and  were  therefore  wholly  una- 
ble to  pay  or  discharge  the  same  or  any 
part  thereof,"  sliows  that  it  was  impossible 
for  them  to  procure  the  money.  In  view  of 
the  other  finding  that  all  the  Indiana  land, 
and  an  undivided  one-half  of  the  Ohio  laud, 
conveyed  by  deeds  to  appellant,  were  held 
by  him  as  security  for  money  advanced  aud 
to  be  advanced,  the  part  of  the  special  find- 
ing last  quoted  is  a  mere  conclusion.  These 
conveyances,  as  to  the  real  estate  mentioned, 
were  merely  mortgages,  and  appellant  had 
no  title  to  the  laud  which  he  could  sell  or 


convey.  A  deed  executed  to  secure  a  debt 
is  a  mortgage,  and  conveys  no  title.  The 
mortgagee  simply  holds  the  land  as  security 
for  the  payment  of  tli(»  debts.  His  rights 
were  the  same  as  if  the  conveyances  were 
mortgages  in  form.  Parker  v.  Hul)ble,  75 
Ind.  nsO;  Bever  v.  Bever  dud.  Sup.)  41  N. 
E.  944,  and  cases  cited;  Fletcher  v.  Holmes, 
32  Ind.  497;  Smith  v.  Bland,  64  Ind.  427; 
Miller  v.  Curry,  124  Ind.  48,  51,  24  N.  E. 
219,  374;  Turpie  v.  Lowe,  on  page  55,  114 
Ind.,  and  page  834,  15  N.  E.;  Chit  wood  v. 
Trimble,  2  Baxt.  78. 

When,  in  18S6,  prior  to  February  ISth,  ap- 
pellant refused  to  make  further  advances, 
if  the  Turpies  had  paid  or  tendered  appel- 
lant the  auKJunt  then  due,  they  could  have 
demanded  a  cancellation  of  the  mortgages, 
or  a  I'econveyance;  and,  if  refused,  a  court 
of  equity  would  have  enforced  a  compliance 
with  such  demand,  or,  without  paying  or 
tendering  payment,  a  court  of  equity,  on  ap- 
plication, would  have  decreed  the  deeds  to 
be  mortgages.  The  Turpies  were  the  own- 
ers of  the  real  estate  conveyed  as  security, 
after  the  deeds  were  made  the  same  as  be- 
fore, and  had  the  right  to  sell  and  convey  or 
mortgage  the  real  estate,  the  same  as  if  the 
deeds  had  been  in  form,  as  they  were  in  fact, 
mortgages.  In  contemplation  of  law,  mon- 
ey is  always  in  the  market,  and  procurable 
at  the  lawful  rate  of  interest.  Aud  if  the 
owner  of  real  estate,  who  has  a  contract 
with  another  to  loan  him  money  to  pay  liens 
or  incumbrances  on  his  land,  who  refuses  to 
do  so,  has  knowledge  of  such  refusal  in  time 
to  give  him  an  opportunity  to  seek  for  it 
elsewhere,  the  fact  that  he  cannot  procure 
the  money,  on  account  of  being  in  embar- 
rassed circumstances,  will  not  entitle  him  to 
recover  more  than  nominal  damages;  for 
the  reason  that  no  party's  condition,  in  i*e- 
spect  to  the  measure  of  damages,  is  any 
worse,  for  having  failed  in  his  engagement 
to  a  person  whose  affairs  are  embarrassed, 
than  if  the  same  result  had  occurred  with 
one  in  prosperous  or  affluent  circumstances. 
City  of  Delphi  v.  Lowery,  74  Ind.  520.  527, 
528;  Hagan's  Petition  (Morgan  v.  Bridge  Co.) 
5  Dill.  96,  Fed.  Cas.  No.  9.802;  Mayhew  v. 
Burns,  103  Ind.  328,  338.  342,  2  N.  E.  793;  1 
Suth.  Dam.  (2d  Ed.)  §  76  In  Mayhew  v. 
Burns,  sui^ra,  this  court,  by  Mitchell,  J., 
said:  "The  law  does  not  set  up  one  standard 
b.v  which  to  determine  the  rights  or  measure 
the  conduct  of  the  rich,  and  another  for  the 
poor.  Its  protecting  shield  is  extended  alike 
over  all.  Its  pride  and  glory  are  to  mete 
cut  equal  and  exact  justice  to  all,  in  the 
same  scale,— rich  and  poor  alike.  In  this  all 
find  security  and  protection."  It  follows, 
therefore,  that  upon  the  facts  found  the  Tui'- 
pies  were  not  entitled  to  more  than  nominal 
damages  for  the  breach  by  appellant  of  his 
contract  to  loan  money  to  pay  liens  and  in- 
cumbrances. As  the  Turjiies  were  not  enti- 
tled to  recover  for  the  breach  of  said  con- 
tracts to  loan  money,  it  is  not  necessary  to 


220 


DAMAGES   FOR    NONPAYMENT   OF   MONEY— INTEREST. 


(Iftonniue  whether  or  not  the  same  are  void 
for  uncertainty. 

It  is  shown  by  the  special  finding  that  ap- 
pellant, in  consideration  of  the  sale  and  con- 
veyance to  him  of  the  undivided  one-half  of 
the  Starke  farm,  was  to  assume  and  pay  $6,- 
1.10  of  the  incumbrance  on  said  farm,  and 
also  that  in  considei-ation  of  the  sale  and 
conveyance  to  him  of  the  undivided  one-half 
of  the  remaining  Ohio  real  estate,  with  the 
exception  of  the  nine  lots  to  be  conveyed  to 
the  Turpies'  wives,  he  has  to  pay  $20,000  on 
the  liens  and  incumbrances  on  the  Ohio  real 
estate.  The  law  is  settled  in  this  state  that, 
I'or  breaches  of  said  agreements  to  pay  said 
purchase  money  when  due,  the  Turpies  were 
entitled  to  sue  and  recover  the  amount 
thereof  impaid,  without  first  having  paid 
said  incumbrances,  or  any  of  them.  Weddle 
r.  Stone,  12  Ind.  62.5,  and  cases  cited;  John- 
son V.  Britton,  23  Ind.  105;  Devol  v.  Mcin- 
tosh, Id.  529;  Scobey  v.  Finton,  39  Ind.  275; 
MuUendore  v.  Scott,  45  Ind.  115;  Turpie  v. 
Ijowe,  on  page  60,  114  Ind.,  and  page  834,  15 
N.  E.  Two  hundred  and  eighty-three  acres 
of  the  Starke  farm  were  afterwards  sold 
upon  a  decree  of  foreclosure  to  satisfy  the 
mortgage,  part  of  wliich  appellant  had  as- 
sumed. The  amount  for  which  the  same 
was  sold  is  not  stated  with  absolute  certain- 
ty, but  it  is  set  fortli  that  the  same  was  sold 
to  satisfy  the  mortgage  thereon,  iipon  which 
there  w-as  due  ?10,300.  Appellant,  if  char- 
ged with  said  $6,150,  was  entitled  to  a  credit 
of  one-half  of  the  amount  said  land  paid  of 
said  mortgage,  in  any  accounting  with  the 
Turpies,  for  the  reason  that  the  sale  of  his 
half  of  said  land  paid  that  sum  on  the  mort- 
gage, a  part  of  which  he  had  assumed,  as  a 
part  of  the  purchase  money  therefor.  Ap- 
pellant was  to  pay  $20,000  on  liens  and  in- 
cumbrances on  the  Ohio  property.  That 
part  of  this  real  estate,  the  undivided  one- 
half  of  which  was  owned  by  the  Turpies 
subject  to  the  mortgage  of  appellant,  was 
sold  for  such  sum  that,  after  deducting  costs 
and  expenses,  the  Turpies'  one-half  of  the 
land  paid  $22,756.56  of  the  liens  and  incum- 
brances thereon.  Whatever  amount  appel- 
lant's half  of  the  land  so  sold  paid,  he  is 
entitled  to  credit  for  in  an  accounting  with 
the  Turpies,  if  he  is  charged  with  the  $20,- 
OfX),  or  any  part  thereof.  It  should  be  re- 
membered that  the  Turpies'  wives  were  en- 
titled to  recover  that  part  of  the  $20,000 
which  was  to  have  been  paid  by  appellant 
on  the  incumbrances  on  the  nine  lots  he 
agreed  to  convey  to  them.  The  Turpies 
therefore  were  only  entitled  to  charge  appel- 
lant with  the  remainder  of  the  $20,000  after 
deducting  that  amount.  Applying  these 
rules,  it  is  evident  that  the  Turpies  were  not, 
upon  the  facts  found,  entitled  to  recover  the 
sum  of  $19,775.  The  finding  of  facts  is  so 
ambiguous,  uncertain,  and  defective  that  the 
amount  which  either  the  Turpies  or  appel- 
lant are  entitled  to  in  an  accounting  one 
against  the  other  cannot  be  stated. 


It  is  claimed  that  the  part  of  the  sixth  con- 
clusion of  law  which  states  that  appellant 
should  be  required  to  convey  to  the  Turpies 
the  undivided  one-half  of  the  N.  E.  14  of  the 
N.  E.  14  of  section  16,  township  28  N.,  range 
4  W.,  and  the  undivided  one-half  of  the  two 
one-acre  lots  in  .1.  C.  Reynolds'  Third  addi- 
tion to  Monticello,  White  county,  Ind.,  de- 
pends upon  the  written  contract  of  Decem])er 
3,  1885,  between  the  Turpies  and  appellant, 
which  is  set  out  in  the  special  finding,  and 
provides  that  appellant  shall  "deed,  or  cause 
to  be  deeded,  to  William  Turpie,  10  lots  in  J. 
C.  Reynolds'  addition  to  the  town  of  Monti- 
cello,  White  county,  Indiana;  40  acres,  more 
or  less,  known  as  the  'Nutter  Laud,'  near  the 
town  of  Monon,  White  county,  Indiana." 
There  is  nothing  in  the  special  finding  which 
identifies  the  real  estate  described  in  that 
part  of  the  sixth  conclusion  above  set  out  as 
being  the  same  as  that  set  out  in  the  written 
contract.  It  is  evident  that  the  description 
of  the  lots  in  Reynolds'  addition,  both  in  the 
written  contract  and  in  the  sixth  conclusion 
of  law,  is  so  indefinite  that  the  same  could 
not  be  identified  or  located  by  a  surveyor. 
Such  a  description  in  a  deed  would  not  con- 
vey title.  Gigos  v.  Cochran,  54  Ind.  593; 
Shoemaker  v.  McMonigle,  86  Ind.  421;  Arm- 
strong V.  Short,  95  Ind.  326,  and  cases  cited; 
Baker  v.  Pyatt,  108  Ind.  61,  9  N.  E.  112.  Be- 
sides, the  contract  provides  for  the  convey- 
ance of  10  lots  in  J.  C.  Reynolds'  addition, 
while  the  sixth  conclusion  of  law  requires 
the  conveyance  of  the  undivided  one-half  of 
2  one-acre  lots  in  J.  C.  Reynolds'  Third  addi- 
tion, etc.  The  lots  are.not  even  in  the  same 
addition.  It  is  true  that  it  is  stated  in  the 
finding  that  the  40  acres  described  in  the 
sixth  conclusion  of  law  are  generally  known 
as  the  "Nutter  Forty  Acres,"  but  the  40  acres 
mentioned  in  the  contract  are  described 
therein  as  being  known  as  the  "Nutter  Land." 
This  does  not  show  that  the  40  acres  men- 
tioned in  the  sixth  conclusion  of  law  are  the 
same  as  the  40  acres  intended  by  the  con- 
tract. It  will  be  observed  that  the  contract 
provides  for  the  conveyance  of  all  the  real 
estate  described  therein,  while  the  conclu- 
sions of  law  only  require  the  conveyance  of 
the  imdivided  one-half  of  the  lots,  and  the 
40  acres  described  in  said  conclusion  of  law. 
If  this  conclusion  was  predicated  upon  the 
finding  that  said  written  contract  had  been 
modified  upon  the  parol  agreement  made  be- 
tween appellant  and  Jones,  with  the  consent 
of  the  Turpies,  that  the  undivideil  one-half  of 
the  real  estate,  as  described  in  the  contract, 
should  be  conveyed  by  appellant  to  Jones,  it 
would  seem  that  such  modification  would 
bring  the  contract,  as  modified,  within  the 
statute  of  frauds,  and  the  contract,  as  modi- 
fied, coidd  not,  therefore,  be  enforced.  Car- 
penter V.  Galloway,  73  Ind.  418;  Browne,  St. 
Frauds,  §§  411,  414;  Wood,  St.  Frauds,  §  403. 
It  follows  that  the  sixth  conclusion  of  law  is 
erroneous. 

It  is  urged  by  the  appellant  that  the  part  of 


]>A.M.\(;ES    FOK    XOXrAYMENT   OF   MONEY-  IN'rKllKS'J'. 


221 


the  socund  <-onchision  of  law  which  states 
that  IIoriKM-  is  cntithd  to  recover  from  ap- 
pellant $1.2t)4  on  account  of  his  failure  to  pay 
the  John  H.  Miller  note  is  not  sustained  by 
the  facts  found;  that  the  promise  was,  in  ef- 
fect, only  to  loan  the  Tiirpies  the  money  to 
pay  said  note;  that,  if  the  facts  found  show 
a  promise  to  pay  said  note,  the  same  was  a 
promise  to  answer  for  the  debt  of  anorher, 
and,  not  being  in  writing,  could  not  be  en- 
forced. It  is  shown  by  the  special  finding 
that  John  H.  Miller  held  the  note  of  the  Tiir- 
pies, upon  which  Horner  was  a  surety,  for 
about  S^l.WO;  that  this  was  one  of  the  liabili- 
ties of  the  Tur])ies  which  appellant  had  on 
December  7,  1885,  agreed  to  advance  the 
money,  by  way  of  a  loan,  and  pay,  and  to  se- 
cure which  the  Turpies  conveyed,  or  caused 
to  be  conveyed,  to  appellant,  real  estate  in 
Ohio  and  Indiana.  The  language  of  the  spe- 
cial finding  concerning  the  agreement  to  pay 
the  note  is:  "Appellant  agreed  with  said 
Horner  and  Turpies  to  pay  said  Horner  the 
amount  due  from  them  to  Horner,  to  wit. 
thirteen  hundred  thirty-five  dollars,  and  to 
pay  to  John  H.  Miller  a  note  of  said  Tur- 
pies, upon  which  said  Horner  was  surety, 
amounting  to  about  one  thousand  dollars," 
etc.  That  "certain  lots  in  Monon  were  own- 
ed by  the  Turpies,  in  the  name  of  Horner, 
and  these  lots  were  a  part  of  the  real  es- 
tate to  be  conveyed  to  appellant  as  securi- 
ty for  money  advanced  and  to  be  advanced 
by  appellant  to  pay  Turpies'  debts."  That 
"when  appellant  received  the  deed  for  the 
Monon  lots  held  in  Horner's  name  as  se- 
curity for  Turpies'  indebtedness  to  Horner, 
and  to  indemnify  him  from  loss  as  their  sure- 
ly, he  promised  said  Horner  that  he  would 
l)ay  said  Miller  note."  This  conveyance  from 
Horner  to  appellant,  made  in  pursuance  to 
the  agreement  with  the  Turpies.  was  the  only 
one  executed  to  appellant  by  any  one  for  said 
lots.  The  money  so  to  be  paid  by  appellant 
was  a  loan  to  the  Turpies,  as  held  by  this 
com't  on  the  former  appeal,  to  secure  which 
they  conveyed,  and  caused  to  be  conveyed, 
real  estate.  The  facts  found  do  not  show 
that  appellant  became  the  debtor  of  the  Tur- 
pies, or  the  del)tor  of  Horner.  He  purchas- 
ed nothing  of  them,  and  did  not  agree  to  pay 
his  own  debt,  but  the  delit  of  the  Tiupies  and 
Horner,  by  promising  to  pay  the  Miller  noie. 
it  was,  in  effect,  a  mere  contract  to  advance 
money  by  way  of  a  loan  to  pay  said  note. 
and  Miller  could  not  have  maintained  any 
action  thereon  against  appellant.  Root  v. 
Wright,  supra;  Garusey  v.  Rogers,  supra; 
Pardee  v.  Treat,  supra.  It  is  settled  law  in 
this  state  that  a  contract  to  answer  for  the 
debt  of  another  must  not  only  be  in  writing, 
but  must  be  supported  by  a  sufticient  consid- 
eration. Such  a  promise  may  have  sufficient 
consideration  to  support  it,  and  yet  not  fur- 
nish ground  for  action,  unless  reduced  to 
writing,  Berkshire  v.  Young,  4.5  Ind.  4G1; 
Langford  V.  Freeman.  GO  Ind.  40:  Krutz  v. 
Stewart,  54  Ind.  178;   Ilassingfr  v,  Newman. 


83  Ind.  124;  Stewart  v.  Jerome,  71  :Mi(li.  201, 
38  N.  W.  805.  The  general  rule  is  that  the 
new  promise  must  put  an  end  to  the  original 
debt,  and  extinguish  it,  or  otherwise  the  new 
promise  will  be  regarded  as  collatenil.  and 
within  the  statute.  Ilolderliaugh  v.  Tnrpin. 
75  Ind.  84,  87;  Langford  v.  Freeman,  supra; 
Crosby  v.  Jeroloman,  37  Ind.  2C,l;  Brant  v. 
Johnson,  4G  Kan.  ."iS!*.  26  Pac.  735;  Packer  v. 
Benton,  35  Conn.  343;  95  Am.  Dec.  24(!,  and 
notes  2.50-2G;5;  Gray  v.  Herman,  75  Wis.  4.53, 
44  N.  W.  248;  Perkins  v.  Hershey,  77  Mich. 
504,  43  N.  W.  1021;  Curtis  v.  Brown,  5  Cush. 
488;  Fullam  v.  Adams.  37  Vt.  3!>1.  The  ques- 
tion to  be  determined  is  whether  the  promise 
be  to  answer  for  the  debt  of  another,  or  to 
pay  one's  own  debt.  If  it  be  to  answer  for 
the  debt  of  another,  it  is  within  the  statute; 
but,  if  it  is  to  pay  the  promisor's  own  debt, 
then  it  is  not  within  the  statute.  Upon  this 
principle  this  court  has  uniformly  held  that 
when  one  promises  to  pay  his  own  debt  to  a 
third  party,  to  wliom  his  creditor  is  indebted, 
or  when  he  purchases  property  subject  to  an 
incumbrance,  and,  as  a  part  of  the  purchase- 
money,  agrees  to  pay  the  incumbrance,  he 
will  be  liable,  and  the  promise  is  not  within 
the  statute.  McDill  v.  Gunn,  43  Ind.  315; 
Carter  v.  Zenblin,  G8  Ind.  436;  Bateman  v. 
Butler,  124  Ind.  223,  24  N.  E.  989.  But  it  is 
claimed  by  counsel  for  Horner  "that  appel- 
lant was  liable  because,  when  Horner  con- 
veyed the  Monon  lots,  which  he  held  to  in- 
demnify him  from  loss  as  Turpies'  surety  to 
appellant,  as  shown  by  the  special  finding,  he 
agreed  with  Horner  to  pay  the  Miller  note, 
and  that  this  case  therefore  falls  within  the 
rule  that  the  promise  to  pay  the  debt  of  an- 
other is  not  within  the  statute  of  frauds  if  its 
consideration  was  the  abandonment  to  the 
promisor  of  a  security  for  the  payment  of  the 
debt,  consisting  of  a  lien  upon  or  interest  in 
the  property  to  which  the  promisor  had  a 
subordinate  title."  We  do  not  think  the  facts 
found  bring  this  case  within  the  doctrine  as 
stated,  and  it  is  not  necessary,  therefore,  to 
determine  whether  the  same,  expressed  in 
such  Ijroad  and  unlimited  terms,  is  the  law 
of  this  state.  See  Langford  v.  Freeman,  su- 
pra; Crosby  v.  Jeroloman,  supra;  Curtis  v. 
Brown,  supra,  and  cases  above  cited.  It  will 
be  observed  tliat  appellant's  only  title,  if  any 
he  had,  to  the  Monon  lots,  was  rhat  conveyed 
by  Horner.  Appellant  therefore  had  no  title. 
sul)ordiuate  or  otherwise,  to  said  lots,  before 
the  deed  therefor  was  executed  by  Horner. 
Horner,  under  the  facts  found,  had  only  a 
lieu,  as  mortgagee,  to  indemnify  him  as  the 
Turpies'  surety,  and  conveyed,  if  anything, 
no  more  than  he  possessed.  If  the  convey- 
ance by  Horner  to  appellant  had  the  effect  to 
abandon  any  lien  or  interest  in  the  Monon 
lots,  yet,  appellant  having  no  interest  in  or 
title  to  said  lots  subordinate  to  Horner's  lien 
or  interest  therein,  the  rule  urged  wouul  not 
apply  to  this  case.  Besides,  Horner  was  not 
the  creditor.  He  was  one  of  the  makers  of 
the  Miller  note.     To  come  within   the   rule. 


222 


DAMAGES   FOR   NONI'AYMEXT   OF   MONEY— INTKllEST. 


the  promise  must  be  made  to,  and  the  lien  be 
abandoned  by,  the  creditor,  and  not  by  one  of 
the  debtors.  Luark  v.  Malone,  34  Ind.  444; 
Browne,  St.  Frauds,  §  201;  Wood,  St.  Frauds, 
§  150.  The  courts,  under  the  claim  of  acting 
in  the  interest  of  e(iuity  and  fair  dealing, 
have  already  gone  quite  far  enough  in  their 
effort  to  take  the  eases  out  of  the  statute  re- 
quiring a  promise  to  pay  the  debt  of  another 
to  be  in  writing,  and  we  do  not  think  the 
doctrines  which  are  the  result  of  such  efforts 
should  be  further  extended.  That  part  of  the 
conclusion  of  law,  therefore,  that  Homer 
was  entitled  to  recover  from  appellant  .?1,2G4 
on  account  of  his  failure  to  pay  the  Miller 
note,  is  not  sustained  by  the  facts  found. 
For  the  same  reason  the  court  erred  in  over- 
ruling appellant's  demurrer  to  the  second 
and  third  paragraphs  of  Horner's  complaint. 
It  is  earnestly  insisted  by  appellant  that  the 
facts  found  do  not  sustain  the  fourth  conclu- 
sion of  law,— that  Mary  F.  and  Emma  J.  Tur- 
pie  are  entitled  to  recover  .$10,000.  The  spe- 
cial finding  upon  this  part  of  the  case  is  of 
umch  wider  scope  than  the  amended  com- 
plaint of  the  Tiirpies'  wives,  which  contains 
no  averment  that  they  took  immediate  posses- 
sion of  said  nine  lots  with  appellant's  consent, 
under  his  agreement  to  convey  the  same  to 
them,  or  that  said  lots  had  been  sold  at  sher- 
iff's sale  to  satisfy  the  incumbrance  thereon, 
and  conveyed  to  innocent  purchasers.  Nei- 
ther is  it  alleged  that  there  was  any  lien  or 
incumbrance  on  said  real  estate.  It  appears 
from  the  special  finding  that  appellant  promis- 
ed to  pay  all  liens  and  incumbrances  on  the 
Ohio  real  estate;  that  he  was  to  pay  $20,000, 
in  consideration  for  the  conveyance  to  him  of 
the  undivided  one-half  of  a  part  of  said  Ohio 
real  estate,  upon  said  liens  and  incumbrances, 
and  the  excess,  if  any  was  required,  was  to 
be  advanced  and  paid  by  him  as  a  loan  to  Ihe 
Turpies  (this  included  the  nine  lots  to  be  con- 
veyed to  the  Turpies'  wives,  and  any  liens  or 
incumbrances  thereon  were  to  be  paid  under 
this  agreement);  that  these  lots  were  convey- 
ed to  appellant  under  the  agreement  that  he 
would  convey  them  to  the  Tuipies'  wivi  s; 
and  that  they  took  immediate  possession 
thereof,  with  appellant's  consent,  under  his 
agreement  to  convey  the  same  to  them.  It 
is  not  directly  stated  in  the  special  finding 
that  there  was  any  incumbrance  on  the  nine 
lots.  The  finding,  however,  sets  out  that  ap- 
pellant permitted  said  lots  to  be  sold  to  pay 
the  incumbrances  that  he  had  agreed  to  re- 
move therefrom;  but  the  amoimt  of  these  in- 
cumbrances, or  when  they  became  due,  is  not 
stated.  Under  the  agreement,  and  the  pos- 
session taken  thereunder  by  the  Tuniies' 
wives,  as  stated  in  the  special  finding,  they 
were  the  real  owners  of  said  nine  lots.  Ap- 
pellant had  no  right  of  possession  or  control, 
<!xcept  to  convey  said  real  estate  to  the  Tur- 
pies' wives.  His  title  was  a  naked  or  nominal 
tnist.  Teague  v.  Fowler,  50  Ind.  569;  Myers 
v.  Jackson,  i;55  Ind.  136.  34  N.  E.  810,  and 
authorities  cited.     It  is  stated  in  the  finding 


that  appellant  failed  to  pay  the  incumbrances 
on  said  lots,  and  permitted  the  same  to  be 
sold  to  pay  the  incumbrances  that  he  agreed 
to  remove  therefrom,  and  that  the  title  there- 
to had  passed  to  innocent  purchasers  at  sher- 
iff's sale.  It  is  not,  however,  found  what 
part  of  said  .^20,000  was  to  have  been  paid  on 
the  incumbrances  on  the  nine  lots,  nor  that 
such  part  would  have  satisfied  the  incumbran- 
ces thereon.  The  Turpies'  wives  knew  before 
February  18,  1HS6,  when  they  commenced 
their  action  against  appellant,  that  he  had 
refused  to  comply  with  his  contract  and  pay 
any  more  of  the  $20,000  on  incumbrances. 
The  loss  by  the  Turpies'  wives  of  the  nine 
lots  by  sheriff's  sale,  as  shown,  was  caused 
by  the  incumbrances  not  being  paid,  and  not 
by  the  refusal  of  appellant  to  convey  the  same 
to  them.  The  fact  that  appellant  refused  to 
pay  the  said  incumbrances, — of  which  they 
had  knowledge,— and  permitted  the  lots  to  be 
sold  to  pay  the  same,  as  stated  in  the  finding, 
did  not  give  the  Turpies'  wives  the  right  to  re- 
cover of  appellant  the  value  of  said  lots,  but 
only  the  amount  he  was  to  have  paid  there- 
on. The  mile  concerning  the  measure  of  dam- 
ages is  the  same  as  if  appellant  had  conveyed 
the  lots  to  them  when  they  took  possession, 
or  the  same  had  not  been  conveyed  by  Wood- 
ruff to  appellant,  but  had  been  conveyed  di- 
rectly to  them.  They  were  the  real  owners 
of  the  nine  lots,  and  could  have  paid  off  the 
incumbrances  thereon,  thus  protecting  their  ti- 
tle, and,  when  the  same  became  due,  recover- 
ed from  appellant  whatever  part  of  the  $20,- 
000  was  to  have  been  paid  thereon  under  the 
agreement,  or,  whenever  said  incumbrances 
became  due  without  paying  the  same,  the 
had  a  right  to  recover  against  appellant  for 
whatever  part  of  said  $20,000  was  to  have 
been  paid  thereon.  l\irpie  v.  Lowe,  on  page 
60,  114  Ind.,  and  page  S:54,  15  N.  E.,  and 
cases  cited.  The  finding  upon  which  the  right 
of  the  Turpies'  wives  to  recover  is  predicated 
is  very  ambiguous,  indefinite,  and  imcertain, 
and  contains  many  conclusions.  There  is 
nothing  in  the  finding  showing  how  it  was 
possible  for  the  nine  lots  to  be  sold  and  con- 
veyed by  the  sheriff  to  innocent  purchasers. 
They,  as  shown  by  the  finding,  were  in  p  s- 
session  of  said  lots,  and  were  necessary  par- 
ties to  any  action  to  enforce  any  incumbrance 
thereon.  Their  possession  was  notice  of  their 
title.  Tinder  such  circumstances,  that  part 
of  the  finding  which  sets  out  that  the  title  of 
said  lots  had  passed  into  the  hands  of  innocent 
purchasers  states  only  a  conclusion.  The  fac  s, 
if  any,  from  which  such  conclusion  was 
drawn,  should  have  been  stated.  For  all  that 
appears,  the  Turpies'  wives  are  still  in  pos- 
session of  said  real  estate.  They  could  not 
be  deprived  of  their  title  unless  made  parties 
to  the  proceeding  imder  which  the  same  was 
sold.  There  is  nothing  set  forth  in  the  spe- 
cial finding  which  would  entitle  them,  under 
the  rule  stated  concerning  the  measure  of 
damages,  to  recover  from  appellant  the  value 
of  said  lots.     It  follows  that,  under  the  facts 


DAMAGES    FOK   NONPAYMENT   OF   MONEY-INTEKEST. 


22:3 


found,  the  ouly  ninount  which  the  Turpies' 
wives  were  entitled  to  recover  was  such  part 
of  the  $20,000  as  was  to  have  been  paid  on  the 
incumbrances  on  said  lots,  with  interest  from 
the  time  the  same  becjime  due.  This  sum  not 
being  shown  by  the  special  find  ins:,  there  I3 
notliinj;  upon  which  a  conclusion  of  law  show- 
ing the  amount  they  are  entitled  to  recover 
can  be  stated. 

The  seventh  conclusion  of  law— that  Jones 
is  entitled  to  recover  $800  from  appellant— is 
based  upon  the  theory  that  Jones,  by  his  coun- 
terclaim,  sought  to  recover  the  value  of  the 
undivided  one-tifth  of  the   Starke  farm   con- 
veyed by  him  to  appellant.     Appellant  urges 
that  the  conclusion  of  law  is   erroneous  be- 
cause the  counterclaim  of  Jones,  upon  which 
the  finding  in  his  favor  and  the  seventh  con- 
clusion of  law  rest,  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action,  and  for 
the  further  reason  that  the  counterclaim  seeks 
to  recover  damages  for  the  breach  by  appel- 
lant  of  a   contract  to   convey  real  estate  to 
Jones,  and  not  upon  the  quantum  valebat  for 
the  real  estate  conveyed  by  Jones  to  appel- 
lant.     It   is    alleged    in    the   counterclaim    of 
Jones  that  he  sold  and  conveyed  the  undivid- 
ed   one-fifth   of   the   Starke  farm,    containing 
about   324   acres,    in   consideration   of   which 
appellant  agreed   "to  convey  or  cause  to  be 
conveyed    to   him   the   undivided   one-half   of 
ten  lots  in  Reynolds'  addition  to  Monticello, 
White  coimty.  Indiana,  which  appellant  rep- 
resented  to    be    worth    two    hundred    dollars 
each,    and    the    undivided    one-half    of    forty 
acres  of  land   near  Monon,  Indiana,  by  him 
represented  to  be  worth  one  thousand  dollars; 
that    he    relied    upon    the    representafons    of 
value,   and   believed   he   was   contracting   for 
property  of  the  value  of  fifteen  hundred  dol- 
lars."    The  counterclaim  proceeds  upon  the 
theorv   that   Jones    was   entitled  to    recover 


damages   for  a  breach   by   appellant  of  the 
contract  to  convey  the  undivided  one-half  of 
the  10  lots,   and   the  undivided  one-half   of 
the  40  acres  of  land  near  Monon,  Ind.,  and 
that  the  measure  of  damages  was  the  value 
of  the  real  estate  appellant  had  agreed   to 
convey.     The  agreement  of  appellant  to  con- 
vey sjiid  real  estate  is  not  alleged  to  bo  in 
writing,  and  will  therefore  be  presumed  to 
have  been  by  parol.     Wolke  v.  Fleming,  \0:\ 
Ind.  105,  lOG,  2  N.  E.  32r>;    Jarboe  v.  Severin, 
85   Ind.  49G,  498;    Budd   v.    Kraus,    79   Ind. 
137.     As  the  agreement  was  for  the  convey- 
ance of  real  estate  of  which  Jones  was  not 
put  in  possession,  the  same  was  within  the 
statute  of  frauds,  and  was  incapable  of  being 
enforced,  or  of  supporting  an  action  for  dam- 
ages  for  its  breach   by   appellant.     Schoon- 
over  V.   Vachon,   121   Ind.   3,   22  N.   E.   777; 
Roehl  V.  Haumesser,  114  Ind.  311,  15  N.  E. 
345;    Burns  v.  Fox,   113  Ind.  205,  14  N.   E. 
541;    Wallace  v.  Long,  105  Ind.  522,  5  N.  E. 
666.     Jones'  action  being  to  recover  damages 
for  the  nonperformance  of  the  contract,  the 
counterclaim  did  not  state  facts  sufficient  to 
constitute   a   cause  of  action,   and    there    is 
nothing,  therefore,  fot  the  seventh  conclusion 
of  law  to  rest  upon.    Besides,  the  special  find- 
ing shows  that  the  right  of  Jones  to  recover 
was  predicated  upon  the  theory  that  the  ac- 
tion was  to  recover  the  value  of  one-fifth  of 
the  Starke  farm.     So  that,  even  if  the  facts 
alleged    in    the    counterclaim    constituted    a 
cause  of  action,  the  conclusions  of  law  would 
be    erroneous,    because    the    same    rest    upon 
a  different  theory  from  the  one  set  forth  in 
the  counterclaim.     Judy  v.  Gilbert,  77   Ind. 
96;  Mescall  v.  Tully,  91  Ind.  96;  Trentman  v. 
Neff,  124  Ind.  503,  24  N.  E.  895.     For  the  rea- 
sons given  the  cause  is  reversed,  with  instnic- 
tions   to  the  coml  below  to  sustain  appel- 
lant's motion  for  a  venire  de  novo. 


224 


l>A.MA<;i:s    FOK    XOXPAYMKXT    OF    MOXKY— INTEIJEST. 


WHITE   el   ;il.    v.   MILI-KU   et   al. 

(78  X.  Y.  393.) 

Court  of  Appeals  of  Xew  York.     1879. 

Action  by  Lewis  White  and  otliers  against 
Ciiauncy  Miller  and  others  for  damages  for 
breach  of  warranty  of  goods  sold.  From  a 
Judgment  of  the  general  term  affirming  a 
judgment  for  plaintiffs,  defendants  appeal. 
Judgment  of  general  term  reversed,  and  that 
eiucn-d  on  the  verdict  modified. 

R.  W.  Perlvham,  for  appellants.  Ksek  Cow- 
en.  for  res])ou(lt>nfs. 

KARL,  J.  This  is  an  action  to  recover 
damages  for  a  breach  of  wai-ranfy  in  the 
sale  of  cabliage  seeds.  The  warranty,  as 
alleged  and  found,  is  that  the  seeds  were 
Bristol  cabbage  seeds;  and  it  was  found  that 
they  were  not.  and  that  they  did  not  pro- 
duce Bristol  cabbages.  The  rule  of  damages, 
as  laid  down  by  the  trial  judge  in  his  charge 
to  the  jury,  was  in  conformity  with  the  de- 
cision of  this  court  when  the  case  was  here 
upon  a  prior  appeal  (71  N.  Y.  IIS).  the  dif- 
ftn-ence  in  value  Itetween  the  crop  actually 
raised  from  the  seed  sown  and  a  crop  of 
Bristol  cabbage,  such  as  Avould  ordinarily 
have  been  produced  that  year.  The  judge 
also  charged  the  jury  that  if  they  found  for 
The  plaintiffs,  they  sliould  also  allow  them 
interest  upon  the  amcnint  of  damage  from 
the  commencement  of  the  suit.  April  15,  1869, 
to  the  day  of  their  verdict.  May  30,  1878. 
The  jury  found  the  damage  to  be  .$2.0!M>.  and 
the  interest  upon  this  sum  to  be  )?1.277.49.  and 
gave  plaintiffs  a  verdict  for  the  amount  of  the 
two  sums.  The  defendants  excepted  to  the 
charge  as  to  interest,  and  this  exception  pre- 
sents the  only  question  for  our  consideration. 

The  law  in  this  state  as  to  the  allowance 
of  interest  in  common-law  actions  is  in  a 
very  tmsatisfactory  condition.  The  decisions 
upon  the  subject  are  so  contradictory  and 
irreccjiieilable  that  no  certain  rule  for  guid- 
ance in  all  cases  can  be  deduced  from  them. 

The  common-law  rtile,  as  expounded  in 
England,  allowed  interest  only  upon  mercan- 
tile securities,  or  in  those  cases  where  there 
had  been  an  express  promise  to  pay  interest, 
or  Avlicre  such  promise  was  to  be  implied 
from  t!ie  itsage  of  trade.  Mayne,  Dam.  (2d 
Ed.)  l()r>;  Higgins  v.  Sargent,  2  Barn,  i^-  C. 
349.  In  the  abs(nice  of  these  conditions,  in- 
terest was  not  allowed  in  an  action  for  money 
lent,  or  for  money  had  and  received,  or  for 
money  paid,  or  on  an  account  stated,  or 
for  goods  sold,  even  though  to  be  paid  for 
on  a  particular  day,  or  for  Avork  and  labor. 
(Jordon  v.  Swan,  12  East,  419;  Calton  v. 
Brjigg,  15  East,  223;  Walker  v.  Constable. 
1  Bos.  &  P.  30<i;  Carr  v.  Edwards,  3  Starkie. 
132;  Xicliol  v.  Thompson,  1  Camp.  52.  note; 
T'relawney  v.  Thomas,  1  H.  Bl.  303. 

Thus  the  law  remained  in  England  until 
the    statute    of    third    and    fourth    William 


ly.,  which  provides  that  upr)n  all  debts  or 
sums  certain,  and  in  actions  of  trover  and 
trespass  de  bonis  asportatis.  and  in  actions 
upon  policies  of  insurance,  the  jtu-y  may  in 
their  discretion  allow  interest  as  part  of  the 
recovery. 

We  have  no  statute  in  this  state  regu- 
lating the  allowance  of  interest  in  such 
eases.  The  rule  early  adopted  here  upon 
till'  subject  was  more  liberal  than  that 
adopted  in  England.  The  allowance  of  inter- 
est was  at  first  mainly  confined  to  cases 
coming  within  the  common-law  rule  as- 
above  defined,  and  to  actions  to  recover 
money  wrongfully  detained  by  the  defend- 
ant. The  rule  was  then  extended  so  as  to 
allow  interest  upon  the  value  of  property  un- 
justly detained  or  wrongfully  taken  or  con- 
verted, and  for  goods  sold  and  delivered- 
and  for  work  and  labor;  and  thus,  by  a  sort 
of  judicial  legislation,  the  allowance  of  in- 
terest, as  a  legal  right,  was  carried  much 
further  here  than  the  scope  of  the  English 
statute,  where  the  allowance  Avas  placed 
simply  in  the  discretion  of  the  jury.  At 
first  the  allowance  of  interest  in  actions  of 
trover  and  trespass  de  bonis  asportatis  was 
in  the  discretion  of  the  jury.  Xow  it  is- 
held  to  be  matter  of  legal  right.  Down  to  a 
recent  period  interest  Avas  not  allowed  upon 
tuili(iui(late.l  accounts  or  demands.  Noaa- 
that  last  landmark  has  been  swept  aAA'ay,  and 
the  sole  fact  that  a  demand  has  not  been 
li(iuidated  is  not  a  bar  to  the  absolute  legal 
right  to  interest. 

A  reference  to  a  fcAV  recent  decisions  will 
shoAv  the  present  state,  or  as  I  might  with 
propriety  say.  the  uncertain  state  of  the  law 
ui)(iu  tlie  subject. 

In  Van  Rensselaer  v.  Jewett,  2  N.  Y.  135. 
the  action  Avas  to  recover  rent  payable  in 
produce  and  work:  and  it  was  held  that  the 
plaintiff  Avas  entitled  to  recoA^er  interest  from 
the  time  the  rent  fell  due.  It  AA'as  admitted 
by  .Judge  Broiison.  Avriting  the  opinion,  that 
the  damages  Avere  tinliquidated.  and  that  tliere 
Avas  no  agreement  for  interest.  He  however 
laid  down  the  general  rule  thus:  When- 
ever a  debtor  is  in  default  for  not  paying- 
money,  delivering  property,  or  rendering 
services  in  pursuance  of  his  contract,  he  is 
chargeable  Avith  interest,  from  the  time  of 
default,  on  tlie  specified  amount  of  money. 
or  the  A-alue  of  the  property  or  serAices,  at 
tlie  Time  tliey  should  liaA'e  been  paid  or  ren- 
dered. In  Dana  v.  Fiedler.  12  N.  Y.  40,  the 
action  Avas  on  a  contract  to  recover  damages^ 
for  the  iiGU-deliA-ery  of  merchandise;  and  it 
Avas  held  that  the  plaintiff  Avas  entitled  to  re- 
coA'er  not  only  the  difference  b;'tween  the  con- 
tract-price and  file  market-v.-ilne,  but  also  tli(- 
interest  on  such  difference;  and  that  the  al- 
lowance of  interest  did  not  rest  in  the  dis- 
cretion of  the  jury.  In  McMahon  v.  Railroad 
Co..  20  N.  Y.  4(i3,  it  Avas  held  that  inter- 
est could  be  allOAA-ed  tipon  an  unliquidated 
(lis])uted  claim  for  AA'ork  under  a  contract 
fur     the    construction    of    a     railroad.     The 


DAMAGES    FOR    XOXPA V.MKNT    OF    MONFV— INTEUE.ST. 


225 


nllowance  was  bailed  upon  the  furious 
.irrounil  that  the  dobtor  was  in  di'fault  for 
not  havin.c  taken  the  requisite  steps  to  as- 
certain the  amount  of  the  debt.  In  tliis 
ease,  Judge  Selden,  spealving  of  the  case  of 
Van  Rensselaer  v.  Jewett,  said  that  that  case 
went  a  step  furtlier  in  the  allowance  of  in- 
terest than  the  prior  cases,  "and  allowed  in- 
terest upon  an  unliquidated  deniand.  the 
amount  of  Avhich  could  be  ascertained  by 
computation,  together  with  a  reference  to 
well-eslablished  market-values;  because  such 
values  in  many  cases  are  so  nearly  certain 
that  is  would  be  possible  for  the  debtor  to  ob- 
tain some  proximate  knowledge  of  how  much 
he  was  to  pay."  In  Adams  v.  Bank,  30  N.  Y. 
2r>5,  and  Mygatt  v.  Wilcox.  45  N.  Y.  30t>.  it 
was  held  that  interest  could  be  recovered  in 
an  action  by  an  attorney  upon  his  account 
for  services.  The  value  of  the  services  does 
not  seem  in  either  case  to  have  been  disputed. 
In  the  tirst  case,  it  was  held  that  interest 
could  be  recovered  from  the  time  payment 
for  the  services  was  due;  and  in  the  latter 
case  it  was  held  that  it  could  be  recovered 
from  the  time  the  account  was  rendered  by 
the  attorney  to  his  client.  The  right  of  re- 
<-overy  was  based  upon  the  theory  that  there 
was  default  in  paying  money  due.  In  both 
cases  the  account  appears  to  have  been  sub- 
stantially liquidated,  the  liability  to  pay  alone 
being  litigated.  In  Smith  v.  Velie,  60  N.  Y. 
100,  the  action  was  to  recover  for  services  as 
housekeeper  for  defendant's  intestate  during 
many  years.  The  plaintiff  had  from  time  to 
lime  received  money  and  goods  to  apply  upon 
her  account.  There  was  no  agreement  as  to 
the  measure  of  compensation,  and  it  was  held 
that  the  account  was  unlicjuidated,  and  that 
interest  was  not  recoverable,  even  from  the 
death  of  the  intestate,  as  there  was  not  a 
fixed  market-value  by  which  the  rate  of  wages 
could  be  detenniiied.  In  McCollum  v.  Sew- 
ard. 02  N.  Y.  310.  the  action  was  upon  an  un- 
liquidated disputed  claim  for  work  ajid  labor, 
and  the  referee  allowed  interest  from  the  com- 
mencement of  the  action;  and  this  upon  the 
appeal  of  the  defendant,  was  held  not  to  be 
erroneous.  In  Mercer  v.  Vose,  07  N.  Y.  50, 
the  action  was  to  recover  for  services  ren- 
dered by  the  plaintiff  to  the  defendant.  The 
claim  was  unliquidated  and  contested.  The 
referee  allowed  interest  upon  the  balance 
found  by  him  from  the  time  plaintiff'  left  de- 
fendant's service  and  demanded  his  pay. 
The  action  was  commenced  in  aljout  a  month 
.ifter  such  demand  was  made,  and  it  was 
held  that  plaintiff  was  entitled  to  recover  in- 
terest at  least  from  the  commencement  of 
the  action,  and  that  if  there  was  any  error 
in  allowing  interest  from  an  earlier  date,  it 
was  too  trifling  to  require  correction.  Upon 
the  prior  trial  of  this  action,  interest  A\-as 
allowed  from  the  time  a  crop  could  have  been 
harvested  and  sold,  if  the  seed  had  been  as 
warranted.  Tliis  was  held  by  this  court  to 
liave  l>eeu  erroneous,  on  tlie  ground  that  ""tlie 
demand  was  unliiiuidated  lud  the  aniuuut 
l.\^y  DAM.lid  Ed.— 15 


ciiuld    not    be    determined    by    computalioii 
simply  or  reference  to  market  values." 

This  brief  presentation  of  decided  cases 
shows  how  ditticult  it  is  to  deduce  from  them 
any  certain  rule  as  to  the  allowance  of  in- 
terest. A  statute  could  probably  be  frameil 
whicli  would  produce  more  certain  if  iioi 
juster  results.  But  it  must  be  seen  that  to 
uphold  this  judgment,  the  rule  as  to  the 
allowance  of  interest  must  be  carried  at 
least  one  step  further  than  it  has  ever  yet 
been  carried;  and  we  are  unwilling  that  the 
stc])  should  be  taken  in  this  case. 

After  a  very  thorough  examination  of  the 
cases  in  England  and  this  country,  I  have 
not  been  able  to  find  one  prior  to  this  one, 
in  which  it  has  been  held  that  in  a  case 
where  tlie  claim  was  such  as  not  to  draw  in- 
terest from  an  earlier  date,  interest  could  be 
allowed  from  the  commencement  of  the 
action,  unless  the  claim  was  such  that  the 
interest  could  be  set  running  by  a  demand, 
the  commencing  of  the  action  in  such  case 
being  a  siiiticient  demand. 

In  Feeter  v.  Heath.  11  Wend.  479,  the  ac- 
tion was  to  recover  for  work,  labor  and 
materials.  There  was  no  dispute  as  to  the 
amount  of  plaintift"'s  claim;  the  only  dispute 
Was  wliether  the  defendant  was  personally 
responsible  for  the  same.  The  agreement 
was  to  pay  the  plaintiff'  upon  performance 
of  his  contract;  and  the  court  held  that  he 
was  entitled  to  interest  at  least  from  the 
commencement  of  the  action,  as  that  was  a 
legal  demand  of  payment.  Under  the  con- 
tract the  plaintiff  was  entitled  to  interest 
from  the  time  his  money  was  due;  and  that 
was  either  Avhen  he  finished  his  contract,  or 
when  he  presented  his  bill  and  demanded 
payment;  and  the  court  held  tliat  the  com- 
mencement of  suit  was  a  sufficient  demand. 
If  a  demand  was  necessary  under  the  cir- 
cumstances of  that  case  a  demand  before 
suit  would  have  been  just  as  eft'ectual  for 
the  purpose  of  the  interest  allowance  as  the 
demand  by  the  commencement  of  suit;  and 
if  such  a  demand  had  been  made  the  plaintiff 
would  have  been  entitled  to  interest,  at  least 
from  the  time  of  such  demand.  In  Mc- 
Colhim  V.  Seward,  supra,  the  referee  al- 
lowed interest  from  the  commencement  of 
tlie  suit;  and  that  was  held  not  to  be.  er- 
roneous. It  Avas  not  decided  that  it  would 
liave  been  erroneous  to  have  allowed  in- 
terest from  an  earlier  date;  and  the  same  is 
true  of  the  case  of  Mercer  v.  Vose.  If  in 
each  of  those  two  cases  an  account  had  been 
made  and  presented  to  the  debtor,  and  pay- 
ment tiemanded,  it  is  probable  that  the  court 
would  have  sustained  an  allowance  of  inter- 
est from  such  demand. 

In  Barnard  v.  Bartholomew.  22  Pick.  291, 
the  action  was  to  recover  a  balance  of  ac- 
count for  money  and  professional  services; 
and  it  was  held  that  "interest  is  to  be  al- 
lowed where  there  is  an  express  promise  to 
pay  it.  or  where  there  is  a  usage  proved  from 
which  the  jury  maj^  infer  a  promise  to  pay; 


226 


DAMAGES   FOR   NONPAYMENT   OF   MONEY— INTEKEST. 


and  also  it  may  be  given  as  damages  for  the 
detention  of  a  debt  after  the  time  when  due 
by  the  terms  of  the  agreement,  or  for  neg- 
lect to  pay  a  debt  after  a  special  demand." 
In  Amee  v.  Wilson,  22  Me.  116,  the  action 
was  upon  an  account  for  goods  sold  and  de- 
livered; and  it  was  held  that  the  plaintifC 
would  be  entitled  to  interest  prior  to  the 
commencement  of  the  suit,  "by  proof  of  an 
agreement  to  pay  it,  or  by  proof  of  a  de- 
mand of  payment,  anterior  to  the  date  of  the 
writ." 

The  cases  last  cited  tend  to  show  that 
where  an  account  for  services,  or  for  goods 
sold  and  delivered,  which  has  become  due 
and  is  payable  in  money,  although  not 
strictly  liquidated,  is  presented  to  the  debtor 
and  payment  demanded,  the  debtor  is  put 
in  default  and  interest  is  set  running;  and 
that  if  not  demanded  before,  the  commence- 
ment of  suit  is  a  sufficient  demand  to  set  the 
interest  running  from  that  date.  But  there 
is  no  authority  for  holding  in  a  case  like 
this,  where  the  claim  sounds  purely  in  dam- 
ages, is  unliquidated  and  contested,  and  the 
amount  so  uncertain  that  a  demand  cannot 
set  the  interest  running,  that  it  can  be  set 
running  by  the  commencement  of  the  ac- 
tion.    Why    should    the    commencement    of 


an  action  have  such  effect?  Tlie  claim  is 
no  less  unliquidated,  contested  and  uncer- 
tain. The  debtor  is  no  more  able  to  ascer- 
tain how  much  he  is  to  pay.  No  new  ele- 
ment is  added.  The  conditions  are  not 
changed,  except  that  the  disputed  claim  has 
been  put  in  suit;  and  there  is  no  more  rea- 
son or  equity  in  allowing  interest  from  that 
than  from  an  earlier  date.  If  interest  as  a 
legal  right-  can  be  allowed  in  this  case  from 
the  commencement  of  the  action,  then  it  must 
be  allowed  from  the  same  date  in  all  actions 
ex  contractu,  and  logically  it  would  be  im- 
possible to  refuse  it  in  actions  ex  delicto. 

Therefore  when  this  court,  upon  the  prior 
appeal,  decided  that  the  nature  of  this  claim 
was  such  that  interest  could  not  be  allowed 
thereon  from  a  time  anterior  to  the  cwn- 
mencement  of  the  action,  it  really  decided  the 
question  now  presented. 

The  judgment  of  the  general  term  must 
therefore  be  reversed,  and  the  judgment  en- 
tered upon  the  verdict  must  be  modified 
by  striking  therefrom  the  sum  of  $1,277.49; 
and  as  thus  modified  it  must  be  affirmed, 
without  costs  to  either  party  as  against  the 
other  upon  the  appeal  to  the  general  term 
and  to  this  court.     All  concur. 

Judgment  accordingly. 


dama(;ks  for  .\(>M'Av.\ii:.\T  of  .mo.nfv-  intkukst. 


22( 


AIANSi'rKI.D   V.   NEW  YOKK   CENT.   &  II. 
R.  R.  CO.i 

(21  X.  E.  7;{.5,  114  N.  Y.  ;',:n.)2 

Court  of  Appeals  of  New  York,  Sccoiid  Division. 
June  4,  1.SS<>. 

Appeal  from  supreme  court,  general  term, 
Second  department. 

Action  lor  breach  of  contract  by  Luther 
E.  Man.slield  against  the  New  York  Central 
&  IIuilsou  River  Railroad  Company.  A  judg- 
ment for  plaintiff  was  alHrmed  by  the  gen- 
eral term  of  the  supreme  court  and  detend- 
ant  appeals. 

Jofm  E.  Barroim,  for  appellant.  W  W. 
Mc  Fail  and,  for  respondent. 

BRADLEY,  J.  I  thi  nk  the  defendant's  ex- 
ception was  well  taken  to  the  submission  to 
the  jury  of  the  question  of  interest  upon  the 
amount  of  damagi's  they  siiould  lind  against 
the  defendant.  Tlie  action  was  to  recover 
for  breach  of  contract.  In  such  cases, 
whether  interest  is  recoverable  does  not  rest 
in  the  discretion  of  the  jury,  but  is  a  ques- 
tion of  law  for  the  court,  while  in  actions 
sounding  in  tort,  when  the  recovery  of  in- 
terest is  permissible,  it  is  with  some  excep- 
tions a  question  for  the  jury.  Duryee  v. 
Mayor,  etc.,  96  X.  Y.  478.  The  rule  upon  the 
subject  may  appear  to  have  been  involved  in 
some  uncertainty,  but  now  it  seems  to  be 
reasonably  well  delined  in  this  state.  In 
McMaster  v.  State,  lOS  N.  Y.  542.  15  N.  E. 
Rep.  417,  the  claim  was  for  damages  found- 
ed upon  a  breach  of  contract  for  the  supply 
of  materials  for  the  services  in  the  construc- 
tion of  a  public  building.  The  damages  re- 
sulted from  the  ref us  il  of  the  state  to  permit 
the  contractor  to  proceed  with  the  work  to 
its  completion,  as  provided  by  the  contract, 
and  such  damages  consisted  of  a  loss  of  prof- 
its, which  would  have  been  realized  by  per- 
formance of  the  work  at  the  contract  price. 
Tlie  court  held  that  interest  was  not  al- 
lowable even  from  the  time  of  the  commence- 
ment of  the  action  or  proceeding,  because  the 
claim  was  unliquidated,  and  "there  was  no 
possible  way  for  the  state  to  adjust  the  same 
iind  ascertain  the  amount  wliich  it  was  liable 
topav."  And  reference  was  n)ade  to  White 
V.  Miller,  71  N.  Y.  118,  78  N.  Y.  393.  That 
was  an  action  to  recover  damages  resulting 
from  breach  of  warranty  upon  sale  of  a 
quantity  of  cabbjige  seed.  The  referee  on  the 
lirst  trial  allowed  interest  upon  the  damages 
from  the  time  the  crop  would  have  been  har- 
vested. The  court  held  that  was  an  error, 
for  the  reason  that  "the  demand  was  uidiqui- 
dated,  and  that  the  amount  coidd  not  be  de- 
termined by  computation  simply  or  reference 
to  market  values."  71  N.  Y.  134.  On  the 
next  tri;d  the  plaintiffs  were  allowed  to  re- 
cover interest  upon  the  amount  of  dam- 
ages from  the  time  of  the  commencement  of 
the  action.     This  was  held  to  be  error,  and, 

1  Dissenting  opinion  of  Potter.  .7.,  omitted. 

2  Modifying  4()  Hun,  (iSO,   mem. 


after  reviewing  many  prior  cases  on  the  sub- 
ject, the  court,  by  Eaul,  J.,  remarked  that 
some  of  those  cited  "tend  to  show  that  where 
an  account  for  services  or  for  goods  sold  and 
delivered,  which  has  become  due  and  paya- 
ble in  money,  aUhongh  not  strictly  liquidat- 
ed, is  presented  to  the  delitor,  and  payment 
demanded,  the  debtor  is  put  in  default,  and 
interest  is  set  running,  and  that,  if  not  de- 
manded before,  the  commencement  of  a  suit 
is  a  sulhcient demand  to  set  the  interest  run- 
ning from  that  date.  Rut  there  is  no  au- 
thority for  holding,  in  a  case  like  this,  wh  're 
tlie  claim  sounds  purely  in  damages,  is  un- 
liquidated and  contested,  and  ihe  amo  int  so 
uncertain  tliat  a  demand  cannot  set  the  in- 
terest running,  that  it  can  be  set  running  by 
the  commencement  of  the  action.  *  *  * 
The  claim  is  no  less  unliquidated,  contest- 
ed, and  uncertain.  The  debtor  is  no  more 
able  to  ascertain  how  much  he  is  to  pay. 
*  *  *  The  conditions  are  not  changed, 
except  that  the  disputed  claim  has  been  put 
in  suit,  and  there  is  no  more  reason  or  equity 
in  allowing  interest  from  that  time  than  from 
an  earlier  date."     78  N.  Y.  399. 

The  judicial  reason  thus  stated  for  the  rule 
applied  in  that  case  is  applicable  to  the  pres- 
ent case,  and  is  no  less  applicable  tothedaui- 
ages  awarded  by  way  of  per  diem  allowance 
for  tiie  lime  the  jury  found  the  plaintiff  and 
his  associate  would  have  completed  the  work 
in  advance  of  live  months  if  the  foundation 
had  been  completed  on  June  22,  1876,  than 
the  other  class  of  damages  allowed  to  the 
plaintitf.  The  alleged  breach  of  contract  was 
that  when  the  stipulated  notice  was  given  tlie 
foimdation  was  not  ready  for  the  superstruct- 
ure which  the  plaintiff's  firm  agreed  to  erect 
upon  it,  and  while  they  were  not  required, 
they  were  permitted,  to  proceed  and  charge 
the  defendant  with  such  damages.  Mans- 
field V.  Railroad  Co.,  102  iV.  Y.  205,  6  N.  E. 
Hep.  386.  Whether  they  could  and  vvoul  i  have 
completed  the  work  in  less  than  five  months, 
if  the  foundation  had  been  entirely  ready 
wiien  the  notice  was  given,  and,  if  so,  how 
many  days  in  ad  vanceof  that  time,  were  ques- 
tions of  very  much  uncertainty,  as  appears 
by  the  evidence,  and  so  much  so  that  there 
can  be  assumed  to  have  existed  no  basis  upon 
which  the  defendant  could  have  made  any 
estimate  with  a  view  to  any  adjustment  of 
the  amount  as  between  it  and  the  plaintiff. 
The  alleged  claim  was  unliqiiidate.l,  and  as 
uncertain  in  a:iiount  as  any  can  well  be  con- 
ceived to  be.  It  was  necessarily  in  some 
sense  speculative,  as  it  involved  the  consid- 
eration of  causes,  the  presence  or  absence  of 
which  could  not  be  demonstrated,  bearing 
upon  the  ability  or  inability  of  the  contractor 
to  do  the  work  within  any  certain  time  if 
they  had  been  permitted  to  proceed  with  the 
utmost  economy  and  advantage  within  five 
days  after  the  defendant's  notice  was  g.ven. 
This  claim  for  damages  was  not  for  servi'  es, 
but  was  sought  to  be  obtained  and  w  as  recov- 
ered as  prospective  profits  of  which  the  plain- 
titf was  deprived  by  the  bn  ach  of  the  con- 


DAMAGES    FOR    NOXrAYMEXT   OF   MONEY— INTEREST. 


tract,  and  it  was  no  less  unliquidated  for  the 
purpose  of  the  question  now  under  consider- 
ation than  it  would  have  been  if  there  had 
been  no  stipulated  per  diem  allowance  pro- 
vided by  the  coutraet  for  the  diligence  of  the 
contractors  in  doing  the  work.  The  amount 
of  such  claim  for  damages  was  entirely  un- 
certain, and  was  closely  contested  by  the  de- 
fendant; so  mucli  so  tliat  a  verdict  for  the  de- 
fendant upon  that  branch  of  the  case  would 
liave  been  supported  by  tlie  evidence.  This 
question  of  interest  seems  clearly  to  come 
witliin  tlie  doctrine  of  the  case  before  cited, 
and  should  liave  been  excluded  from  consid- 
eration on  the  trial;  and  in  view  of  the  rea- 
son for  the  rule,  and  the  rule  itself,  so  an- 
nounced, the  cases  cited  by  the  plaintiff's 
counsel  do  not  support  his  proposition  in  this 
respect.  In  Parrott  v.  Ice  Co.,  46  N.  Y.  361; 
Mairs  v.  Association,  89  N.  Y.  498;  Walrath 
V.  Kedfield,  18  N.  Y.  457;  Duryee  v.  Mayor, 
etc.,  96  X.  Y.  477, — the  actions  were  in  tort, 
and  tiie  question  of  interest  was  for  the  jury. 
In  Van  iJensselaer  v.  Jewelt,  2  N.  Y.  135, 
tlie  action  was  for  rent  payable  in  s])ecified 
articles  with  no  sum  mentioned,  and  Dana  v. 
Fieiller,  12  N.  Y.  41,  was  brought  to  recover 
damages  for  non-delivery  of  a  quantity  of 
madder  pursuant  to  contract.  In  botli  these 
cases  the  market  values  of  the  property  at 
the  time  stipulated  for  delivery  tlie  defend- 
ants iiad  the  means  of  ascertaining,  and  there- 
fore when  in  default  and  required  to  perform 
they  were  able  to  ascertain  by  computation 
the  amounts  to  which  the  plaintiffs  were  en- 
titled. -The  court  held  that  they  were  enti- 
tled to  recover  interest.  In  McMahon  v. 
Kaihoad  Co.,  20  N.  Y.  463,  the  action  was  to 
recover  for  work  performed  and  materials 
furnished  by  the  plaintiff  in  construction  of 
tlie  defendant's  road.  The  defendant  had 
refused  to  have  measurements  made  by  its 
engineer,  which  was  a  condition  precedent 
to  payment.  The  court  referred  to  the  doc- 
trine of  \^in   Rensselaer  v.  Jewett,  and  by 


Selden,  J.,  said  that  the  court  there  went 
as  far  as  was  reasonable  to  go,  and  held  that 
interest  was  allowable  upon  the  ground  that 
defendant  was  in  default  for  not  having  taken 
the  requisite  ste{)s  to  ascertain  the  amount  of 
the  debt.  In  McCollum  v.  Seward,  62  X.  Y. 
316,  and  Mercer  v.  Yose,  67  N.  Y,  56,  the 
actions  were  to  recover  the  amount  due  for 
services  upon  the  quantam  meruit.  The 
claims  were  unliquidated,  and  the  recovery 
of  interest  from  the  time  of  the  commemnv 
ment  of  the  action  was  sustained.  The  for- 
mer of  the  last  two  cases  was  decided  upon 
authorities  there  cited,  and  was  followed  liy 
the  otiier.  The  doctrine  of  that  line  of  cases 
is  tliat  in  actions  for  services  rendered  or 
goods  sold,  etc.,  when  the  debtor  is  in  default 
for  not  paying  pursuant  to  his  contract,  the 
creditor  is  entitled  to  interest  by  wa^'of  dam- 
ages. Newell  V.  Wiieeler,  36  N.  Y.  244; 
Mygatt  V.  AVilcox,  45  N.  Y.  306.  And  that 
is  upon  the  theory  that  the  amount  may  be 
known  or  ascertained  and  computed,  actually 
or  approximately,  by  reference  to  market 
values.  Sipperly  v.  Stewart,  50  Barb.  62; 
Van  Kensselaer  v.  Jewett,  2  X.  Y  135, 140; 
DeLavallette  a-  Wendt,  75  X.  Y.  579.  There 
may  be  cases,  from  the  nature  of  which  it  ap- 
pears that  this  cannot  be  done,  to  wliich  the 
rule  allowing  interest  is  not  applicable. 
(Smith  V.  Velie,  60  X.  Y.  106;  De  Witt  v. 
De  \\'itt,  46  Ilun,  258,)  and,  so  far  as  I  liave 
observed,  it  has  not  been  extended  to  actions 
to  recover  unliquidated  damages  for  breach 
of  contract,  unless  the  means  are  accessible 
to  the  party  sought  to  be  charged  of  ascer- 
taining the  amount,  by  computation  or  oth- 
erwise, to  which  the  oth^r  party  is  entitled. 
This  case  cannot  be  brought  within  the  rule 
which  renders  the  recovery  of  interest  per- 
missible. My  conclusion  is  that  the  plaintiff 
was  erroneously  allowed  to  recover  interest, 
and  that  tiie  judgment  should  be  modified  ac- 
cordingly. All  coneur,  except  POTTER,  J., 
dissenting. 


l>A.MA(;Ea    FOK    NONrAV-MENT    OF    MONEY— IXTEKBST. 


229 


SULLIVAN  et  al.  v.  :Mr.MILr>A\  ot  al. 

(19  .South.  :i40,  :M  F1:i.  l.'U.i 

Suprciiip  Conrt   of  Floridn.       I'^cli.    IS.    iSitf.. 

Appoal  from  circuit  court,  Esc-iuibia  couu 
ty;   W.  D.  Barnes,  Judso. 

Action  by  A.  M.  McMillan  and  C.  L.  Wig- 
gins, copartners  under  the  name  of  McMillan 
&  Wiggins,  against  M.  H.  Sullivan  and  Emily 
S.  Sullivan,  executor  and  executrix  of  I).  F. 
Sullivan,  deceased.  .Judgment  for  plaintiffs, 
iuul  defendants  appeal.     Affirmed. 

R.  L.  Campbell,  for  appellants.  W.  A. 
i;iount,  for  appellees. 

LIDDON,  J.  This  is  the  second  appeal  in 
this  case.  On  the  first  appeal  all  questions  of 
law  presented  by  the  case  have  been  settled, 
€xcept  two  matters  now  controverted  be- 
tween the  parties.  The  nature  of  the  case 
will  fully  appear  by  reference  to  the  report- 
ed opinion  and  the  statements  of  fact  accom- 
panying the  same.  26  Fla.  .543,  8  South.  450. 
The  suit  was  brought  by  appellees,  hereafter 
called  the  plaintiffs,  against  appellants,  here- 
after called  the  defendants,  for  the  breach  of 
a  contract,  whereby  appellees  agreed  to  de- 
liver to  the  testator  of  appellants  all  the  logs 
of  certain  specified  dimensions,  and  free  from 
certain  specified  defects,  growing  upon  cer- 
tain described  lands  of  said  testator.  The 
breach  alleged  to  have  been  made  by  the  de- 
fendants after  the  death  of  said  testator  was 
in  refusing  to  receive  tlie  remainder  of  said 
logs  after  a  portion  of  the  same  had  been  de- 
livered. From  the  evidence  it  appears  that 
it  would  have  taken  appellees  two  years,  or 
thereabouts,  from  the  time  the  contract  was 
broken  by  appellants,  to  have  completed  the 
i'ontract  on  their  part  by  delivery  of  the  oth- 
er logs  embraced  within  the  provisions  of  the 
i^ame.  After  the  appellants  broke  the  con- 
tract by  refusing  to  receive  any  more  logs 
under  the  same,  the  appellees,  with  some  of 
the  same  teams  that  had  been  engaged  in 
the  work  required  for  the  performance  of 
such  contract,  engaged  in  other  work  of  de- 
livering logs  under  other  contracts  to  other 
parties.  The  appellants  sought  to  prove  what 
i?ains  and  profits  were  made  by  the  appellees 
by  their  own  labor  and  the  use  of  such  teams 
in  such  other  work  and  contracts  during  the 
time  that  it  would  have  taken  them  to  per- 
form the  contract  with  the  appellants'  testa- 
tor, and  for  the  breach  of  which  the  suit 
was  brought.  The  circuit  court  excluded  such 
evidence.  Tlie  proof  upon  the  trial  did  show 
the  value  of  the  use  of  these  teams,  and  what 
other  teams  could  have  been  engaged  for,  and 
were  taken  into  consideration  in  estimating 
the  plaintiffs'  profits  upon  which  the  verdict 
was  based.  The  appellants  claim  that  such 
evidence  should  have  been  admitted;  that 
they  were  entitled  to  prove  the  amount  of 
such  gains  and  profits;  and  that  such  amount 
should  have  been  deducted  by  the  jury  from 
the  amount  found  to  be  due  the  appellees,  un- 
der the  rule  for  the  measure  of  damages  es- 


tablished by  this  court.  26  Fla.  543,  8  South. 
450.  The  first  of  the  matters  controverted, 
above  alluded  to,  is  whether  such  gains  and 
profits  made  by  the  appellees  in  subsequent 
contracts  should  be  deducted  from  the  gen- 
eral amount  of  damages  which,  under  the 
measure  of  damages  established  as  stated, 
could  be  recovered  by  them.  The  second  is 
whether  any  interest  should  be  recovered  on 
the  damages  caused  by  the  breach  of  the  con- 
tract for  which  the  action  was  brought. 

It  is  urged  by  appellants  that  the  plaintiffs, 
when  they  received  notice  that  the  defendants 
would  not  further  comply  with  or  perform  the 
contract,  should  have  done  all  that  reason- 
ably lay  within  their  power  to  protect  them- 
selves from  loss  by  seeking  another  contract 
of  like  character,  and  that,  the  plaintiffs  hav- 
ing sought  and  obtained  such  a  contract  im- 
mediately after  the  breach  sued  upon,  the  de- 
fendants were  entitled  to  have  a  proportion- 
ate amount  of  the  profits  applied  in  mitigation 
of  the  damages  for  which  they  were  liable. 
Otherwise  it  is  contended  that  the  plaintiffs 
would  make  two  profits  for  the  same  time, 
and  Avith  the  same  teams,  and  that  specula- 
tion would  be  substituted  for  compensation, 
which  is  the  basis  of  the  law  of  damages  for 
breaches  of  contract.  These  propositions  are 
undoubtedly  correct  when  applied  to  some 
classes  of  cases.  Tliey  have  special  refer- 
ence to  contracts  for  personal  services",  or  for 
the  use  of  some  special  instrumentality,  ei- 
ther with  or  without  connection  with  such 
personal  services.  Thus,  in  a  contract  for 
teaching  in  a  school,  which  was  broken  by  a 
refusal  to  receive  the  services,  it  was  held  to 
be  the  irlaintiff's  duty  to  make  reasonable  ex- 
ertion to  obtain  other  like  employment  in  the 
same  vicinity,  and  thus  mitigate  the  damages. 
Gillis  V.  Space,  G3  Barb.  177;  Benziger  v. 
Miller,  50  Ala.  206.  The  same  rule  was  laid 
down  for  a  similar  breach  of  a  contract  with 
an  actress.  Howard  v.  Daly,  61  N.  Y.  362. 
Where  the  plaintiff',  owner  of  a  portable  saw- 
mill, agreed  to  remove  it  to  the  farm  of  the 
defendant,  and  to  saw  a  stated  number  of 
logs,  to  be  furnished  by  the  defendant,  during 
certain  seasons  of  the  year  1865,  and  the  de- 
fendant, after  furnishing  a  portion,  broke  his 
contract  by  refusing  to  furnish  more  of  such 
logs,  but  during  the  time  he  (plaintiff)  would 
have  been  engaged  in  sawing  defendant's, 
logs  he  was  ott'ered  other  employment  of  the 
same  kind,  so  that  his  mill  need  not  have  been 
idle,  it  was  held  that  the  damages  caused  by 
the  breach  sued  upon  should  have  been  mit- 
igated. Heavilon  v.  Kramer,  31  Ind.  241. 
The  facts  in  the  case  of  Frazier  v.  Clark,  88 
Ky.  260,  10  S.  W.  806,  and  11  S.  W.  S3,— a  saw- 
mill case, — very  much  resemble  those  of  Hea- 
vilon V.  Kitimer,  and  the  same  point  was  like- 
wise determined.  In  a  case  of  a  breach  of 
a  contract  to  furnish  a  cargo  for  a  vessel  it 
was  held  to  be  "the  duty  of  the  master  of  a; 
chartered  vessel,  on  the  failure  or  refusal  of 
the  charterer  to  furnish  the  cargo  as  agreed 
on,  to  avail  himself  of  all  ordinary  means  and 


i:;3!) 


DAMA(JKS    Foil    NONPAY.MKXT    OF    MON]:V— 1N'1K]:K«T. 


proper  opportunities  to  obtain  another  cargo; 
and  if  lie  neglect  to  perform  this  duty  the 
owners  cannot  hold  the  charterer  liable  for 
the  increased  damages  resulting  from  such 
neglect."  Murrell  v.  Whiting,  32  Ala.  5i.  A 
very  similar  case,  and  a  very  similar  holding, 
is  yiiannon  v.  Comstdck,  21  Wend.  457.  In 
Hodges  V.  Fries,  34  Fla.  (.J3,  15  South.  082,— 
a  suit  for  violation  of  a  contract  for  rent  of 
a  .store  building  by  refusing  to  put  plaintiff 
in  possession  of  same, — it  was  held  to  be  the 
duty  of  the  plaintiff  to  mitigate  the  damages 
by  accepting  another  store  in  the  same  vicin- 
ity, and  ecpially  well  suited  for  her  purposes, 
wliich  was  tendered  to  her. 

The  contract  which  was  broken  in  the  pres- 
ent case  was  not  one  for  personal  services,  nor 
one  which  the  parties  contemplated  should  be 
performed  with  any  special  means  or  instru- 
mentality. It  was  simply  a  contract  for  the 
delivery  of  certain  logs  at  a  certain  place,  and 
might  have  been  performed  by  the  plaintiffs 
with  their  own  teams  and  personal  labor,  or 
by  any  other  means  or  agency  to  which  they 
might  have  seen  fit  to  intrust  the  performance 
of  the  same.  There  is  nothing  in  the  contract 
to  show  that  the  execution  of  the  same  re- 
qtiired  all  or  any  great  portion  of  the  time  or 
personal  attention  of  both  or  either  of  the 
plaintiffs;  or  that  it  was  impracticable  for 
plaintiffs  to  be  engaged  in  other  business  and 
the  performance  of  other  contracts  contempo- 
raneously with  the  performance  of  the  contract 
in  controversy.  W^e  do  not  think  the  rule  in- 
voked as  to  mitigation  of  damages  by  subse- 
quent earnings  and  profits  applies  to  this  case; 
A  distinction  is  recognized  between  a  case  of 
the  character  of  that  now  before  us,  and  those 
to  which  we  have  alluded.  2  (4reenl.  Ev.  § 
mi;  Watson  v.  Brick  Co.,  3  W\ash.  283,  28 
Pac.  527;  1  Sedg.  Dam.  §  208;  Wolf  v.  Stude- 
baker,  G5  Pa.  St.  4.59;  Crescent  Manuf'g  Co.  v. 
N.  O.  Nelson  Manuf'g  Co.,  100  Mo.  325,  13  S. 
W.  503;  Nilson  v.  Morse,  52  Wis.  240  (text, 
255)  9  N.  W.  1;  Cameron  v.  White,  74  Wis. 
425,  43  N.  W.  155;    Field,  Dam.  §  339. 

There  was  no  legal  obligation  upon  the  plain- 
tiffs in  this  case  to  enter  upon  the  perform- 
ance of  other  contracts  for  the  benetit  of  the 
defendants.  The  stipreme  court  of  Wisconsin, 
in  Cameron  v.  White,  supra,  where  a  conten- 
tion like  that  of  appellants  in  this  case  was 
made,  as  we  think  properly  said:  "As  the 
plaintiffs  cotild  not  enliance  the  damages 
against  the  defendant  by  their  neglect  to  make 
the  best  of  what  they  had  on  their  hands,  so 
they  are  not  bound  to  lessen  the  damages  by 
making  other  contracts,  and  performing  them, 
and  giving  the  benefit  of  the  performance  of 
such  contracts  to  the  defendant."  A  very  full 
exposition  of  this  subject,  showing  the  dift'er- 
ence  in  the  rales  applicable  to  contracts  for 
personal  service  and  those  for  the  doing  of  a 
specific  act,  can  be  found  in  Watson  v.  Brick 
Co.,  supra.  This  discussion  is  too  lengthy  to 
insert  entire  in  this  opinion.  The  gist  of  the 
whole  matter,  the  conclusion  of  the  court,  cit- 
ing Wolf  v.  Studebaker,  65  Pa.  St.  459,  is  thus 


stated:  "The  duty  to  seek  employment  is  de- 
pendent upon  the  original  contract  being  one 
of  employment  or  hire.  It  is  not  applicable  to 
every  contract.  *  *  *  Ordinary  contracts  of 
hire  and  contracts  for  the  performance  of  some 
specified  undertaking  cannot  be  governed  by 
the  same  rule.  That  in  one  case  the  party  can 
earn  no  more  than  the  wages,  and  if  he  gets 
that  his  loss  will  be  but  nominal;  whereas,  in 
the  other  case,  the  loss  of  the  party  is  the  loss 
of  tlje  benefit  of  the  contract.  The  damages 
may  be  said  to  be  fixed  by  the  law  of  the  con- 
tract the  moment  it  is  bi'oken,  and  cannot  l)e 
altered  by  collateral  circtimstances  independ- 
ent of  and  totally  disconnected  from  it,  and 
from  the  party  occasioning  it.  To  plead  the 
doctrine  of  avoidable  consequences  to  such 
case,  *  *  *  'would  necessarily  involve  proof 
of  everything,  great  and  small,  no  matter  how 
various  the  items  done  by  the  plaintiff  during 
the  period  of  the  contract  might  be,  and  how 
mtich  he  made  in  the  meantime.'  *  *  *  1l 
the  rule  was  to  be  observed  tliat  the  damages 
proven  must  be  direct  and  approximate,  the 
same  rule  must  be  invoked  in  the  reduction  of 
damages."  In  Crescent  Manuf'g  Co,  v.  N.  O. 
Nelson  Manuf'g  Co.,  supra,  where  an  attempt 
was  made  to  offer  evidence  similar  to  that  ex- 
cluded in  the  present  case,  it  was  said:  "Where 
a  servant  is  wrongftilly  discharged  during  his 
term,  and  lays  his  damages  at  the  contract 
wages  for  the  balance  of  the  term,  It  is  gener- 
ally held  that  evidence  may  be  introduced  in 
mitigation  of  damages  of  what  he  might  have 
earned  in  the  interim  by  using  reasonable  ef- 
forts to  procure  other  employment.  So,  in  gen- 
eral, where  a  party  has  been  injured  or  dam- 
aged Ijj'  a  breach  of  a  contract,  he  should  do 
whatever  he  can  to  lessen  the  injury.  Many 
cases  asserting  these  principles  of  law  are  cit- 
ed by  the  defendant,  but  they  have  no  appli- 
cation to  the  case  in  hand.  The  plaintiff  own- 
ed its  factory  and  the  machinery,  and  the  con- 
tract constituted  no  such  relation  as  that  of 
master  and  servant.  It  had  the  right  to  make 
as  few  or  as  many  other  contracts  as  it  saw 
fit  while  executing  the  contract  with  defend- 
ant, and  it  is  entitled  to  the  proHts  which  it 
might  have  made  on  this  particular  contract. 
The  evidence  offered  in  mitigation  of  damages 
was  properly  excluded." 

From  what  has  been  said  by  us  and  quoted 
with  approval  from  the  decisions  of  other 
courts  it  follows  that  we  are  of  the  opinion 
that  the  circuit  court  did  not  err  in  excludiug^ 
the  testimony  offered,  and  that  the  doctrine 
that  one  who  has  been  injured  by  the  breach 
of  a  contract  must  do  all  that  is  reasonably 
within  his  power  to  mitigate  the  damages 
caused  thereby  does  not  prevail  to  the  extent 
that  one  who  is  injured  by  a  violation  of  an 
agreement  to  do  a  specific  act  not  necessarily 
involving  personal  services  must  seek  and  pei-- 
form  other  (-(jntiacts  for  the  benefit  of  on(^ 
who,  by  breaking  faith  with  him,  lias  caused 
the  injury. 

The  second  matter,  as  already  stated,  is 
whether  any  interest  is  recoverable  upon  the 


DAMAGES    FOR    NONPAYMENT   OF   MONEY— INTERBST. 


281 


amount  of  damages  found  by  the  jury  i 
against  the  defendants.  The  court  instruct- 
ed the  jury  that,  if  they  found  a  verdict  for 
the  i)laintifTs,  they  should  assess  the  dam- 
jiges,  with  8  per  cent,  interest,  from  what- 
ever date  the  evidence  showed  the  contract 
would  have  been  completed.  The  jury,  in 
its  verdict,  stated  separately  the  amount  of 
the  damages  assessed  and  the  interest  there- 
on, and  judgment  was  entered  for  the  aggro- 
gate  amount.  These  proceedings  are  claim- 
ed to  be  erroneous,  for  the  reasons  alleged: 
(1)  That  no  interest  can  be  allowed  in  a  re- 
covery of  unliquidated  damages,  and  (2)  that 
the  evidence  does  not  show  any  date  from 
which  the  jury  might  calculate  the  interest. 
It  cannot  be  doubted  that  the  ancient  rule  is 
adverse  to  the  assessment  of  interest  upon 
unliquidated  demands.  More  liberal  ideas 
as  to  the  allowance  of  interest  prevail  in 
modern,  especially  in  American,  authorities; 
and  in  the  allowance  of  interest  the  distinc- 
tion is  practically  obliterated  between  liqui- 
dated and  unliquidated  demands.  A  stand- 
ard author  upon  the  subject  says:  "The  de- 
termination of  the  question  whether  interest 
can  or  cannot  be  allowed  is  by  no  means 
free  from  difficulty.  The  most  general  clas- 
sification of  causes  of  action  with  reference 
to  interest  is  into  liquidated  and  unliquidat- 
ed demands.  And  it  was  formerly  attempt- 
ed to  lay  down  the  rule  that  interest  could  be 
recovered  only  on  liquidated  demands.  But 
it  will  be  perceived  that,  not  only  is  the  dis- 
tinction itself  not  by  any  means  easy  to  keep 
in  view,  but,  besides  this,  there  is  no  reason, 
in  the  nature  of  things,  why  the  fact  of  a 
demand  being  unliquidated  should  debar  the 
plaintiff  from  receiving  or  exempt  the  de- 
fendant from  paying  interest.  And,  finally, 
we  do  not  find  as  a  matter  of  fact  that  the 
line  between  cases  in  wliich  interest  is  allow- 
ed and  cases  in  which  it  is  refused  cori'e- 
sponds  with  the  line  between  liquidated  and 
unliquidated  demands.  *  *  *  The  objec- 
tion to  this  classification  lies  not  only  in  its 
difficulty  of  application,  which  might  per- 
haps be  surmounted;  but  in  the  fact  of  its 
unfairness.  There  is  no  reason  why  a  per- 
son injured  should  have  a  smaller  measure 
of  recovery  in  one  case  than  the  other.  *  *  ♦ 
On  general  principles,  once  admit  that  inter- 
est is  the  natural  fruit  of  money,  it  would 
seem  that,  wherever  a  verdict  liquidates  a 
claim,  and  fixes  it  as  of  a  prior  date,  interest 
should  follow  from  that  date.  *  *  *  There 
are  two  tests  which  are  constantly  applied 
by  the  courts,  having  been  found  by  them 
more  useful  than  the  attempted  division  into 
liquidated  and  unliquidated  demands.  Of 
these  the  first  is  whether  the  demand  is  of 
such  a  nature  that  its  exact  pecuniary 
amount  was  either  ascertained  or  ascertain- 
able by  simple  computation,  or  by  reference 
to  generally  recognized  standards,  such  as 
market  price;  second,  w'hether  the  time  from 
which  interest,  if  alloAved,  must  i-uu,— that 
is,  a  time  of  definite  default  or  tort  feasance, 


— can  be  ascertained."  1  Sedg.  Dam.  (8th 
Ed.)  §§  290,  .'{OO.  "The  subject  is  without 
doubt  a  dllHeult  one,  and  the  decisions,  as 
have  been  seen,  are  not  harmonious.  But  by 
keeping  in  mind  the  fiuidamental  luMnciple. 
much  of  the  difliculty  may  be  avoided.  As 
soon  as  it  is  the  legal  duty  of  the  defendant 
to  pay,  he  is  liable  for  interest.  As  the  de- 
fendant must  have  been  in  default  before 
the  action  is  brought  if  the  plaintiff  recov- 
ers, and  as  his  default  consisted  in  with- 
holding money  due,  he  should,  it  seems,  get 
interest  at  least  from  the  date  of  the  writ. 
There  seems  to  be  good  reason  for  going  fur- 
ther, and  holding  him  to  be  in  default  from 
a  demand  by  the  plaintiff  for  an  accounting 
(made  after  a  reasonable  time)  aud  a  i-efusa! 
to  account.  From  that  time  the  defendant 
cannot  claim  any  right  to  withhold  whatever 
balance  was  in  fact  due,  and  would  have 
been  found  due  if  he  had  acceded  to  the 
plaintiff's  demand.  Before  that,  the  plain- 
tiff cannot  claim  any  right  to  payment. 
Where  interest  is  refused  in  actions  of  con- 
tract on  the  ground  that  the  claim  is  unliqui- 
dated, it  is  in  fact  usually  allowed  from  the 
date  of  the  writ."  Id.  §  315.  We  think  the 
above  quotations  state  the  true  rule.  Anoth- 
er author,  while  affirming  the  proposition 
that  interest  is  not  allowed  on  unliquidated 
demands,  makes  an  exception  in  favor  of 
"demands  based  upon  market  values,  sus- 
ceptible of  easy  proof,  though  unliquidated 
until  the  particular  subject  of  the  demand 
has  been  made  definite  and  certain  by  agree- 
ment or  proof."     1  Suth.  Dam.  p.  610. 

An  examination  of  the  authorities  shows 
that  the  principles  quoted  above  are  sustain- 
ed by  various  decisions.  In  State  v.  Lott, 
69  Ala.  147,  it  is  said:  "Interest  in  this  state 
has  long  been  regarded,  not  as  the  mere  in- 
cident of  a  debt,  attaching  only  to  contracts, 
express  or  implied,  for  the  payment  of  mon- 
ey, but  as  compensation  for  the  use  or  for 
the  detention  of  money.  Whenever  it  is  as- 
certained that  at  a  particular  time  money 
ought  to  have  been  paid,  whether  in  satisfac- 
tion of  a  debt,  or  as  comijensation  for  a 
breach  of  duty,  or  for  a  failure  to  keep  a 
contract,  interest  attaches  as  an  incident." 

Without  lengthening  this  opinion  wnth  fur- 
ther quotations,  we  simply  cite,  as  having  a 
direct  bearing  upon  the  subject,  the  follow- 
ing cases:  Van  Rensselaer  v.  .Tewett,  2  N. 
Y.  135;  Schmidt  v.  Railroad  Co.,  95  Ky.  289, 
25  S.  W.  494,  and  26  S.  W.  547;  Brackett  v. 
Edgerton,  14  Minn.  174  (Gil.  134);  Boyd  v. 
Gilchrist,  15  Ala.  849;  Whitworth  v.  Hart,  22 
Ala.  343:  Adams  v.  Bank,  36  N.  Y.  255;  Sel- 
leck  V.  French,  1  Conn.  32.  This  court  has 
allowed  interest  on  an  unliquidated  claim  of 
damages  in  Jacksonville,  T.  «&  K.  W.  Rj'.  Co. 
V.  Peninsular  Land,  Trausp.  &  Mauuf'g  Co., 
27  Fla.  1  (text,  140  et  seti.)  9  South.  661,  aud 
expressed  its  disapproval  of  Ancrum  v.  Slone, 
2  Speer,  594,  in  which  it  was  held  that  in- 
terest could  not  be  allowed  on  unliquidated 
damages. 


232 


DAMAGES   FOR   NONPAYMENT   (3P^   MONEY— INTEIIE>ST. 


Without  setting  forth  even  a  brief  sum- 
mary of  the  evidence  in  the  case,  we  think 
it  sufficient  to  say  that  it  was  so  exact  and 
definite  as  to  the  amount  of  damage  sustain- 
ed by  the  plaintiffs,  and  the  elements  of  the 
same,  that  it  only  required  a  simple  compu- 
tation by  the  jury  to  fix  the  amount.  We 
think  the  case  falls  within  the  rule  stated, 
that  the  damages  could  be  readily  liquidated 
and  ascertained  by  the  jury  by  simple  com- 
putation, and  that  the  plaintiffs  were  enti- 
tled to  interest  thereon. 

We  do  not  think  the  objection  well  taken 
that  the  evidence  shows  no  date  from  which 
the  jury  could  calculate  the  interest.  The 
evidence  shows  sufficiently  a  date  within 
which  the  plaintiffs  could  have  completed 
their  contract,  viz.  two  years  from  the  time 
the  defendants  made  a  breach  of  it.  This 
time  was  long  after  the  action  was  brought. 
The  amount  of  interest  allowed  shows  that 
it  was  calculated  from  such  date.  The  court 
told  the  juiy   to  allow  the   interest   "from 


whatever  date  the  evidence  shows  the  con- 
tract would  have  been  completed,"  and  we 
think  the  proof  sufficiently  definite  as  to 
such  a  date.  There  was  no  reversible  error 
in  the  instruction  or  the  finding  of  the  jury. 
By  this  holding  we  do  not  intend  to  deter- 
mine whether  the  interest  could  have  been 
calculated  only  from  the  date  sufficient  for 
the  completion  of  the  contract,  or  whether 
it  should  have  been  estimated  from  the 
breach  of  the  same,  or  from  the  filing  of  the 
writ  in  the  suit.  We  only  determine  that 
there  was  no  prejudicial  error  to  the  defend- 
ants in  the  record.  If  the  rule  varied  at  all 
from  the  triie  rule  for  calculation  of  interest, 
such  variance  was  in  defendants'  favor,  and 
lessened  the  amount  of  the  recovery  against 
them. 

liCt  the  judgment  of  the  circuit  court  be  af- 
firmed. 

NOTE.    Jacksonville,  T.  &  K.  W.  Ry.  Co.  v, 
I'enin.sular  Laud,  Transp.  &  Mfg.  Co.,  post,  410. 


DAMA(;i:S    I-OK    .\()NPAV.Mi:.\T    Ol'    MOM-.V     INIKIJKST 


288 


I.OUISVILLE   &  N.   K.    CO.    v.    WALI.ACi'. 

(17  S.  W.  882.  91  Ten II.  ;;5.) 
Supreme  Court  of  Tennessee.    Doc.   12,   1891. 

Appeal  from  circuit  court,  Siinmer  coun- 
ty; H.  C.  Carter,  Judse. 

Action  bv  W.  L.  WMllace  against  the 
Louisville  &  Nashville  Railroad  Company 
for  personal  irijurie.s.  Judgment  for  plain- 
tiff, and  defendant  appeals.    Reversed. 

J.  J.  Turner,  for  plaintiff.  -S.  F.  Wilson, 
R.  K.  Gillespie,  and  iico.  W.Boddie,  for  de- 
fendant. 

SNODGRASS,.T.    The  defendant  in  error, 
whilein  tlieserviceof  theLouisville&  Nash- 
ville Railroad  Company  as  brakeman,  sus- 
tained severe  personal  injury,  resultius  in 
the  loss  of  a   lep;,  which    he   alleged    was 
occasioned  by  the  nejiligence  of   the  com- 
pany.     He  sued    for  $15,000  damages  and 
recovered  judgment  for   .f 0.940.     The  rail- 
road company  appealed,  and  assigned  nu- 
merous errors.     It    is  not  deemed  mate- 
rial to  notice  but  one  of  them,  as  the  others 
are  not  well  talten,  and  involve  nothing 
new,  so  as  to  make  their  consideration   in 
a  written  opinion  necessary.    The  one  ma- 
terial to  be  considered  relates  to  the  ques- 
tiou  of  interest.     The  court   told  the  jury 
it  couUl  assess  plaintiif's  djunages  with  or 
without  interest,  as  the  jury   should   see 
pi'oper,   in   connection    with    instructions 
as  to  the  measure  of  damages  not  other- 
wise complained  of.     The  verdict  assessed 
the  damages  at  $7,000  with   7  years'  inter- 
eht   .lfL',940,   aggegating   .f9,940.     It   is   ob- 
jected in  the  assignment  of  errors  that  the 
charge  on  this  question,  and  verdict,  with 
judgment  thereon,  are  erroneous.    This  in- 
volVes   a   consideration   of    the  question, 
what  is  the  true  measure  of  damages  for 
such  personal  injury?     The  rule  for  deter- 
mining damages  for  injuries  not  resulting 
in    death,  (where    the    statute    fixes    the 
measure,)  and   not  calling  for  exemplary 
punishment,  deducible  from  the  decisions 
of  this  court  since  its  organization  in    this 
state,  is  that  of  compensation   for  mental 
suffering  and  physical  pain,  loss   of  time, 
and   expenses  incident  to   the  injury,  and, 
if  it  be  permanent,  the  loss  resulting  from 
complete  or  partial   disability  in   health, 
mind,  or  pers(»n  thereby  occasioned.     And 
this  is  the  rule  most  consonant  to  reason 
adopted   in   other  states.    3  Sedg.   Dam. 
(8th  Ed. j  §  481  et  seq. ;  5  Amer.  &  Eng.  Enc. 
Law,  pj).   40-44,  and   notes;  Railroad   Co. 
v.  Read,  87  Amer.   Dec.   260.    As   this  sum 
in    gross  includes    all    the    compensation 
which  is  requisite  to  cover  pain,  suffering, 
and  disability  to   date   of  judgment,   and 
pr(jspectively  beyond,  it  is  intended  to  be 
and  is  th.e  full    measure  of  recovery,  and 
cannot   be  supplemented   by  the  new  ele- 
ment of  damages  for  the  detention  of  this 
sum    from   the  date   of    the  injury.     The 
measure  of  damages  being  thus  fixed,  it  is 
expected  that  in  determining  it  juries  and 
courts  will  make  the  sutu  given  in  gross  a 
fair  and  just  compensation,  and  one  in  full 
of  amount  proper  to   be  given  when   ren- 
dered, whether  so(m   or  late   after  the  in- 
jury ;  as,  if  given  soon,  it  looks  to  contin- 
uing suffering  and  disability,  just  as,  when 
given  late,  it  includes  that  of  the  past.     It 


isohvious  t;;at  damagoscould  not  begiv^n 
for  pain    and    suffering   and   disability  ex- 
perienced on  the  very  day  of  trial, and  then 
interest   arlded    for  years     before.     'I'lie^e 
are  items  considered  to  make   up   the   ag- 
gregate then  due,  and  Hie  gross   sum  then 
for   th^   first    time  judicially  asc(>itaiiie(l. 
The  error  of  the  court    below  was   in    the 
assumption    that   a  like  measure  of  dam- 
ages is  applied  in  this  class  of  cases  as  in 
that  of  injury  to  property  effecting  its  de- 
struction or  conversion  or  other  unlawful 
or  fraudulent  misappropriation,  or  deten- 
tion of   property  or   money,  in    which  the 
rule  applied   by  the  circuit  judge  is  held  to 
be  a  proper  one;  not  on   the   theory,  even 
in  this  class  of  cases,  that  interest  as  such 
is  due,  but  that  the  plaintiff  is  entitled  to 
the  fixed   sum  of  money  or  definite  money 
value  of  pro4)erty  converted  or  destroyed, 
and    the  jury   may   give  as   dam.ages  an 
amount  equal  to  interest   on   the  value  of 
the  propertv.     But  such  rule  applies  alone 
to  such  cases,  and  not  to  that  of  personal 
injury,  wliich  does  not  cease  when   inflict- 
ed, and  Is  not  susceptible  of  dehuite  and 
accurate   computati(jn.      It    never   creates 
ci  debt,  nor  becomes  one,  until   it  is  judi- 
cially ascertained   and   determined.     Only 
from  that  time  can  it  draw  interest;  and 
interest  as  damages  cantiot  at  ;iii y  prccd- 
ing  time  be  added  to  it  without   clianging 
and   superadding  a     new   element,   never 
given  in  this  state  or  any  other  in  a  similar 
case,  so  far  as  our  investigation   has  dis- 
covered.    The    counsel    of  plaintiff,    who 
cite  many  authorities   supposed   to   be  in 
support  of  the  ruling  below,  were  doubt- 
less misled  by  the  generality  of  terms  used 
in  some  of  them.     Under  the  head   of  "In- 
terest." after  stating  that  "it  was  gener- 
ally   allowed    by    law  on    two    grounds, 
namely,  on   contract,  express   or  implied, 
or  by  way  of  damages  either  for  default  in 
payment   of  a  debt  or    for  a  use  or  bene- 
fit derived  from  the  money  of  another,"  it 
is  stated   in  11    Amer.  &   Eng.  Enc.  Law 
that,  "where  it  is  imposed   to   punish  tor- 
tious, negligent,  or  fraudulent  conduct,  it 
is  a  (Hiestion  within  the  discretion   of  the 
jury."  Page  380.    For  this  proposition  va- 
rious authorities  are  cited,  including   Mr. 
Sedgwick  on  Damages,  p.  374,  (the  reference 
being  to   paging  of  the  fifth  or  earlier  edi- 
tion.)    This   author   uses  similar  general 
terms,  but   neither  was  speaking  of  cases 
of  personal  injury,  but  of  the  class  of  cases 
to  which  we  have  referred,  as  fully  appear.s 
from  Mr.  Sedgwick's  further  discussion  of 
this  general  head,  on  pages  385,  3s6,  and  as 
most  clearly  appears  from   a    reference  to 
the  authorities  cited  by  both,  which  relate 
to  cases   of   trover  and   trespass  and    to 
proper cy  controversies   only.     In   neither 
of    these    books    is  the   proposition   now 
thought   to    be    sustained    by    them    ad- 
vanced,—that  the  measure  of  damages  for 
a  personal  injury  includes  damages  for  de- 
tention of  the  supposed  amount  due.    The 
generality  of  statement   indulged   in  that 
and  former  editions   of   this  work  is  cor- 
rected by  editors  of  the  last  edition.  Chap- 
ter 10  of  the  first  volume  of  this  edition  is 
devoted   to   interest   allowed    in     actions 
where  it  is  by  rule  of   law,  r)r  in   the  dis- 
cretion  of  the  jury   or  court  trying   the 
case,  allowed  as   part   of   the   measure  of 
damages.     In   these  cases  are  enumerated 


284 


DAMAGES   FOR    NONPAYMENT  OF   MONEY— INTEIIEST. 


and  discussed  those  actions  sounding  in 
tort  in  wbich  interest  maj'  be  given  as 
danuiffes.  The  distinction  is  there  taken, 
as  talien  here,  and  actions  for  personal  in- 
juries excluded,  because  of  the  existence  of 
a  wiiolly  different  measure  of  damages  re- 
specting them.  In  this  connection  we 
quote  section  320  in  the  volume  and  chap- 
ter referred  to:  "It  sufficiently  appears, 
from  what  has  already  been  said,  that 
there  is  no  general  principle  which  pre- 
vents the  recovery  of  interest  in  actions  of 
tort.  The  fact  that  tiie  demand  is  nnliq- 
uidated  has  been  shown  to  be  insufficient 
to  exclude  interest,  and  there  is  nothing  in 
the  mere  form  of  the  action  which  renders 
it  unreasonable  that  interest  should  be 
given.  Nevertheless  it  is  in  the  region  of 
tort  that  we  find  the  clearest  cases  fordis- 
allowance  of  interest.  There  are  many 
cases  which  are  not  brought  to  recover  a 
sum  of  money  representing  a  property' loss 
of  the  plaintiff,  and  it  is  frequently  said 
broadly  that  interest  is  not  allowed  in 
such  actions.  It  is  certainly  not  allowed 
in  such  actions  as  assault  and  battery,  or 
for  personal  injury  by  negligence,  libel, 
Blander,  seduction,"  etc.  The  measure  of 
damage  in  such  case  seems  nowhere  to  in- 
clude this  or  be  based  upon  this  idea.  Even 
in  respect  to  injury  or  destruction  of  prop- 
erty, w  Here  the  sui)rpme  court  oi  ihebnited 
States  has  adopted  fully  the  prevailing- 
rule  allowing  damages  in  the  form  of  in- 
terest on  value  of  the  property,  the  rule 
has  been  limited  to  such  injury  of  pr«»perty 
or  proi^erty  i-ight  as  had  a  fixed  or  cer- 
tain value;  and  it  is  accordingly  held  In 
that  court  that  indefinite  damages,  as 
that  resulting  from  infringement  of  a  pat- 
ent, could  not  bear  interest  until  after  the 
amount  had  been  iudicialij'  ascertained. 
Tilghman  v.  Proctor,  ILVi  U.  S.  lOl,  8  Sup. 
Ct.  Rep.  894. 

The  direct  question  we  are  considering 
also  came  before  the  supreme  judicial 
court  of  Maine,  and  it  was  there  held  that 
the  rule  permitting  damages  equal  to  in- 
terest on  value  of  property  in  cases  of  tres- 
pass and  trover  did  not  apply,  and  that 
interest  could  not  be  allovved  upon  a  re- 
covery for  personal  injury,  and  that,  too, 
under  a  statute  authorizing  a  recovery 
"to  the  amount  of  the  damage  sustained." 
(This  is  not  material,  however,  as  their 
statute  gave  no  more  nor  less  right  than  ex- 
ists here.)  Sargent  v.  Hampden,  38  Me.  5Nl. 
The  cases  cited  by  the  editors  of  the  last 
edition  of  Sedgwick  on  Damages  sustaining 
the  proposition  that  interest  cannot  be  in- 
cluded in  a  recovery  of  damages  for  per- 
sonal injuries  are  from  Georgia  and  Penn- 
sylvania. Ratteree  v.Chai)man,79Ga.  574, 
4  S.  E.  Rep.  084;  Railroad  Co.  v.  Young,  81 
Ga.  397,  7  S.  E.  Rep.  912:  Railwav  Co.  v. 
Taylor,  104  Pa.  St.  306.  These  cases  have 
all  been  examined,  and  fully  sustain  the 
text.  One  of  the  cases  cited  to  the  proposi- 
tion in  Amer.  &  Eng.  Enc.  Law  was  a 
Pennsylvania  case,  earlier  than   either  of 


those  to  which  we  have  referred.  The  case 
there  cited,  (Fasholt  v.  Reed,  16  Serg.  & 
R.  266.)  which  we  have  not  been  able  to 
find  in  libraries  here,  was  evidently  not 
one  of  personal  injury,  or  else  not  consist- 
ent with  later  holdings  of  that  court.  In- 
deed, the  Pennsylvania  court  seems  hard- 
ly to  have  gone  as  far  on  that  (juestion  in 
reference  to  allowance  of  interest  as  dam- 
ages jn  other  actions  ex  delicto  as  other 
courts.  In  suits  for  the  destruction  of 
property  that  court  has  lield  that,  while 
lapse  of  time  may  be  looked  to,  it  is  error 
to  instruct  the  jury  that  plaintiff  is  enti- 
tled to  interest  on  such  damage  from  the 
time  it  occurred.  Township  of  Plymouth 
V.  Graver,  12.5  Pa.  St.  24,  17  Atl.  Rep.  1'49; 
Emerson  v,  Schoonmaker,  185  Pa.  St.  4-37, 
19  Atl.  Rep.  1025.  Of  the  other  cases  cited 
in  Amer.  &  Eng.  Enc.  Law,  we  have  ex- 
amined those  in  13  Wis.  31,  (Hinckley  v. 
Beck  with,)  36  N.  Y.  639.  (Vandevoort  v. 
Gould,)  and  30  Tex.  349,  (Wolfe  v.  Lacy.) 
They  all  sustain  the  text  as  it  is  intended 
to  be  understood,  and  as  we  have  herein 
explained,  and  doubtless  the  other  cases 
do  so.  To  the  same  effect  are  the  <'ases  of 
Lincoln  v.  Claflin,  7  Wall.  132;  Dyer  v. 
Navigation  Co.,  118  U.  S.  .507,  6  Sup.  Ct. 
Rep.  1174;  U.  S.  v.  North  Carolina,  136  U. 
S.  211,  10  Su|..  Ct.  Rep.  920;  Clement  v. 
Spear, .56  Vt.  4Ul ;  and  cases  from  American 
decisions  and  reportscited  in  Rapalje's  Di- 
gest, volume  1,  pp.  1039-1041,  under  heads 
"Trover,"  and  "When  Interest  may  be 
Added,  "and  volume  2,  p.  1991,  under  head  of 
"Interest."  See,  also,  1  Sedg.  Dam.  §§432- 
493,  (8th  Ed.)  The  eff<-ct  and  meaning  of 
statements  quoted  from  Amer.  &  Eng. 
Enc.  Law  and  its  reference  to  Sedg.  Dam. 
are  made  I'erfectly  clear  when  these  cases 
and  authorities  herein  added  are  examined, 
and  the  generality  of  expressions  limited  to 
the  purj)Ose  of  their  use  and  the  class  of 
cases  being  considered.  They  were  not 
dealing  at  all,  nor  intended  to  be  undei- 
stood  as  dealing,  with  the  question  of  re- 
covery for  personal  injuri(!S,  whi('h  is  itself 
a  recovery  of  damages  pure  and  simple, 
and  measured  by  a  rule  which  needs  no 
supplement  that  would  add  damages  ta 
damages.  The  charge  and  verdict  were 
therefore  erroneous  on  this  point,  and 
prejudicial  to  defendant  to  the  extent  and 
only  to  the  extent  of  the  injury.  The  cir- 
cuit judge  might  have  refused  to  receive 
the  verdict  as  to  interest,  and  the  same 
effect  may  now  follow  a  remitting  of  the 
interest  by  plaintiff,  if  he  elects  to  do  so. 
In  that  event  the  plaintiff  is  entitled  to  a 
judgment  for  $7,000,  with  interest  from 
date  of  its  '"endition,  and  costs,  and  with 
this  modification  tne  judgment  will  b& 
affirmed.  This  was  the  practice  adopted 
in  the  Maine  case  on  this  point,  as  well  a» 
in  one  of  the  Pennsylvania  cases,  (135  Pa. 
St.  437,  19  Atl.  Rep.  1025,)  citing  several 
others,  and  is  clearly  the  correct  rule,  in 
default  of  such  remission,  a  new  trial  will 
be  granted. 


DAMAGES  FOR   NONPAYMENT  OP   MONEY— INTEREST. 


23: 


WILSON  V.  CITY  OF  TROY. 

(32  N.  E.  44,  135  N.  Y.  96.) 

Court  of  Appeals  of  New  York.    Oct  4,  1892. 

Appeal  from  supreme  court,  general  term, 
third  department. 

Action  by  Walter  V.  Wilson  against  the 
city  of  Troy  to  recover  damages  for  an  in- 
jury to  a  horse  resulting  from  a  defective 
street.  Plaintiff  had  judgment,  which  was 
affirmed  at  general  term  (14  N,  Y.  Supp.  721), 
and  defendant  appeals.    Affirmed. 

Wm.  J.  Roche,  for  appellant.  Ghas.  E. 
Patterson,  for  respondent. 

O'BRIEN,  J.  The  record  in  this  case  pre- 
sents two  questions:  First,  whether  the  find- 
ing of  the  jury  that  the  damage  was  the  re- 
sult of  the  defendant's  negligence  is  sustained 
by  any  evidence;  and,  secondly,  whether  in- 
terest could  legally  be  allowed  by  the  jury  in 
estimating  the  amoimt  of  the  damages.  On 
the  night  of  the  13th  of  November,  1879,  a 
valuable  horse  belonging  to  one  Learned, 
plaintiff's  assignor,  while  being  driven 
through  South  street  in  the  city  of  Troy,  fell 
into  an  open  ditch  or  unguarded  excavation, 
made  during  that  day,  and  was  permanently 
injured.  There  is  little,  if  any,  controversy 
with  respect  to  the  value  of  tlie  horse,  the  ex- 
tent of  the  injury,  or  the  amount  of  damages. 
The  night  was  dark,  and  it  is  not  denied  that 
there  was  evidence  for  the  jury  sufficient  to 
sustain  a  finding  of  negligence  on  the  part  of 
some  one  by  reason  of  the  failure  to  protect 
a  place  of  danger  in  a  public  street,  by  proper 
guards  and  lights.  It  was  not  shown  that  the 
city  had  any  actual  notice  of  the  existence 
of  the  excavation,  if  made  by  private  parties 
without  its  permission;  and  a  sufficient  pe- 
riod had  not  elapsed  between  tJie  time  of  open- 
ing it  and  the  accident  to  render  the  city  lia- 
ble on  the  ground  of  implied  notice.  The  ex- 
cavation was  made  for  the  purpose  of  con- 
ducting the  water  from  Uie  principal  main  in 
the  street,  through  lateral  pipes,  into  a  pri- 
vate house.  The  owner  of  the  house  em- 
ployed a  firm  of  plumbers  to  do  the  work, 
which  included  the  digging  of  the  trench  as 
v/ell  as  laying  and  connecting  the  lateral 
pipes  Avith  the  main  in  the  street.  The  firm 
applied  to  the  superintendent  of  the  water- 
works for  men  to  open  the  trench  in  the 
street,  and  that  officer  directed  laborers  in 
the  employ  of  the  city  to  do  so.  The  open- 
ing in  the  street  was  made  by  them,  and  they 
were  paid  for  the  work  by  the  city,  the  plumb- 
ers refunding  to  it  the  sum  so  paid.  The 
question  is  whether  the  men  who  dug  the 
ditch  were  under  the  control  and  direction  of 
the  defendant,  or  subject  to  the  orders  of  the 
plumbers  engaged  in  performing  a  piece  of 
work  for  the  owner  of  the  house. 

The  system  of  waterworks  in  Troy  is  the 
property  of  the  municipality,  and  is  imder  the 
management  and  control  of  a  board  of  water 
commissioners,  which  may  be  regarded  as  a 


department    of    the    city    government.     The 
commissioners  are  by  law  required  to  nom- 
inate, and  the  common  coxmcil  of  the  city  to 
appoint,  a  superintendent  of  the  waterworks, 
who  is  the  executive  officer  in  that  depart- 
ment, and  who,  in  this  case,  directed  the  men 
in  the  employ  and  pay  of  the  city  to  mak-j 
the  excavation  in  the  street.     The  boara  is 
authorized  V)y  law  to  extend  the  distributing 
pipes  of  the  waterworks  wlierever  they  might 
think  proper,  and  to  make  such  alterations 
and  improvements  in  the  works,  and  in  the 
management    and    preservation    thereof,    as 
they   might  deem   necessary  and  expedient, 
and  to  employ  such  persons  and  assistiints  as 
they  might  require,  to  execute  any  of  these 
puiiioses,  which  employes  were  to  be  paid  for 
their  services  from  the  city   treasury.     The 
commissioners  were  also  empowered  to  enact 
such  by-laws,  regulations,  and  ordinances  as 
they  should  deem  necessary  for  the  protec- 
tion  of  hydrants  and  water  pipes,  and  the 
preservation,  protection,  and  management  of 
the  waterworks.     These  by-laws,  nnless  dis- 
approved by  a  vote  of  two-thirds  of  all  the 
membere  of  the  common  council  of  the  city, 
were  to  have  all  the  force  and  effect  of  law. 
In  pursuance  of  the  power  thus  conferred  by 
the  statute,  the  board  of  water  commission- 
ers enacted  by-laws  and  ordinances  on  the 
subject  which  were  in  force  at  the  time  ihe 
excavation  in  question  was  made.     They,  in 
effect,  prohibited  any  person  except  the  super- 
intendent, and  those  employed  by  him  or  by 
the  commissioners,  to  tap  or  make  any  con- 
nection with  the  main  or  distributing  pipe, 
or  to  permit  the  same  to  be  done,  unless  by 
the  permission  and  under  the  direction  of  the 
superintendent.     The  learned  counsel  for  the 
defendant  contends  that  this  regulation  sim- 
ply forbids  the  act  of  connecting  the  lateral 
pipes  from  the  house  with  the  main,  and  did 
not    prohibit   private   persons   from    digging 
the  necessary  trenches  and  uncovering  the 
main   or  distributing   pipe,    and   hence   that 
part  of  the  work  was  done  by  the  contractors 
Avho   were   employed   by   the   owner   of   the 
house  to  make  the  connection,   and   not  by 
the   city.     But  a  private  individual  had  no 
right  to  dig  in  the  street  for  this  or  any  other 
purpose  without  the  permission  of  the  proper 
municipal  authorities,  and  the  object,  as  well 
as  the  language,  of  the  ordinance  indicates 
that  it  was  intended  to  prevent  the  uncover- 
ing of  the  main,  or  any  interference  with  the 
street  in  which  it  was  placed,  by  private  par- 
ties.    At  all  events,  the  water  board  and  its 
chief  executive  officer,  the  superintendent,  in 
the    discharge   of   the    duties  imposed   upon 
them   by   the   statute,    might   very   properly 
give  to  it  that  construction,  and  act  accord- 
ingly.    To  hold  that  such  a  by-law  did  not 
embrace  within   its  object  and  purview  the 
evils  that  might  result  from  unguarded  and 
unregulated  interference  with  the  bed  of  the 
street  by  private  parties  in  order  to  reach  the 
main,  would  be  giving  to  it  a  construction  al- 


236 


DAMAGES   FOR   NONPAYMENT   OF   MONEY— INTEREST. 


together  too  narrow.  The  evidence  tends  to 
show  that  the  water  board  gave  to  it  tlie 
broader  and  more  coniprelieusive  meaning, 
as  it  was  the  custom  and  practice  for  years 
before  tlie  accident  in  question  to  make  appli- 
cation to  the  superintendent  for  men  to  do  the 
digging,  and  they  were  always  furnished,  as 
in  this  case.  As  between  the  owner  of  the 
house  and  the  plumbers  emploj^ed  by  her  to 
introduce  the  water  into  her  house,  the  dig- 
ging was  undoubtedly  a  part  of  the  couti-act 
or  work  of  the  lattei*.  If  no  main  had  been 
placed  in  the  street  at  that  time,  they  could 
also  have  contracted  with  her  to  procure  its 
extension,  but  that  part  of  tLo  work  would  bo 
subject  to  the  action  and  regulations  of  the 
water  board,  and,  Avhile  the  contractors  might 
be  obliged  to  pay  the  city  for  the  whole  or 
some  part  of  the  expense,  it  would  be  none 
the  less  the  work  of  the  city.  One  of  the 
plumbers  testified  that  while  he  agreed  with 
the  owner  of  the  house  to  do  all  the  work, 
yet  he  knew  then  that  it  was  the  practice  and 
custom  to  apply  to  the  superintendent  of  the 
wateiTvorks  for  men  to  do  the  digging  and  to 
make  the  connection,  and  acted  upon  the  as- 
sumption that  he  had  no  right  to  do  it.  He 
also  says  that  the  men  who  made  the  exca- 
vation were  not  employed  by  him,  but  by  the 
city.  We  think  that,  upon  the  proof,  it 
could  not  be  held,  as  matter  of  law,  that  the 
men  who  dug  the  trench  and  left  it  unguard- 
ed ceased  for  the  time  being  to  be  the  serv- 
ants of  the  city,  and  subject  to  the  directions 
of  the  superintendent,  and  became,  while  do- 
ing tbis  job  of  work,  the  servants  of  the  par- 
ty employed  to  put  in  the  lateral  pipes  into 
the  house,  as  is  urged  by  the  learned  counsel 
for  the  defendant.  What  party  sustained  the 
relation  of  master  to  the  men  who  dug  the 
trench,  and  had  the  control  and  direction  of 
them,  and  was  charged  with  the  duty  of  di- 
recting them  to  properly  guard  the  ditch,— 
whether  the  plumbers  on  the  one  hand,  or  tne 
city,  through  the  superintendent  of  the  water- 
works, on  the  other,— was  tlie  important  ques- 
tion to  be  determined,  and  the  trial  court  sub- 
mitted it  to  the  jury.  Under  all  the  circum- 
stances, the  question  became  one  of  fact,  and 
this  disposition  of  it  was  not  error.  Ward  v. 
Fibre  Co.,  154  Mass.  420,  28  N.  E.  Rep.  299. 
This  finding  of  the  jury  is  conclusive  upon 
us,  and  imports  that  the  city  itself,  through 
one  of  its  officers  or  departments,  caused  the 
trench  to  be  dug,  and  left  it  unguarded,  re- 
sulting in  the  damage  complained  of.  In 
such  a  case  the  negligent  act  is  imputable 
to  the  city,  and  the  doctrine  of  actual  or  im- 
plied notice  has  no  application,  or,  at  least, 
is  unnecessary,  where  one  injured  by  the  neg- 
lect of  the  city  to  properly  guard  a  place 
made  dangerous  by  its  own  act  brings  the  ac- 
tion. Pettengill  v.  City  of  Yonkers,  116  N. 
Y.  5.58,  22  N.  E.  1095;  Walsh  v.  Mayor,  etc., 
107  N.  Y.  220,  1.3  N.  E.  911;  Turner  v.  City 
of  Newburgh,  109  N.  Y.  301,  16  N.  E.  344; 
Brusso  V.  City  of  Buffalo,  90  N.  Y.  679;   Rus- 


sell V.  Village  of  Canastota,  98  N.  Y.  490; 
Nelson  v.  Village  of  Canisteo,  100  N.  Y.  89,  2 
N.  E.  4715;  Ehrgott  v.  Mayor,  etc.,  96  N.  Y, 
273;  Barnes  v.  District  of  Columbia,  91  U.  S. 
540. 

The  amount  demanded  m  the  complaint  on 
account  of  the  injury  to  this  horse  was  $3,000, 
and  the  court  instructed  the  jury  that  they 
could  not,  in  awarding  damages,  go  beyond 
that  sum,  with  interest.  The  defendant's 
counsel  excepted  to  this  in  so  far  as  it  author- 
ized interest,  and  requested  the  court  to 
charge  that  the  jury  could  not  allow  interest 
in  the  action.  The  court  declined  to  so 
charge,  and  the  defendant's  counsel  excepted. 
The  jury  afterwards  came  into  court,  and  an- 
nounced that  they  had  found  a  verdict  for  the 
plaintiff  for  $3,000  and  interest.  The  court 
then  said:  "You  must  compute  the  interest 
if  you  give  interest.  You  will  have  to  render 
your  verdict  in  dollars  and  cents."  This  di- 
rection was  complied  with,  and  the  verdict 
as  entered  included  interest  from  the  date 
of  the  injury,  which  result  has  been  modified 
by  the  general  term  by  striking  out  the  inter- 
est awarded  prior  to  the  date  of  the  presenta- 
tion of  the  claim  to  the  city,  which  was  held 
to  be  a  prerequisite  to  the  maintenance  of  the 
action.  The  fair  construction  of  the  charge 
is  that  the  jury  could  include  in  the  damages 
interest  upon  the  sum  found  to  represent  the 
diminished  value  of  the  horse  in  consequence 
of  the  injury,  and  not  that  the  plaintiff  was 
entitled  to  interest  as  matter  of  right.  The 
exception,  therefore,  presents  the  question 
whether,  in  an  action  to  recover  damages  to 
property  by  reason  of  negligence  on  the  part 
of  the  defendant,  it  is  within  the  power  of 
the  jury,  in  the  exercise  of  discretion,  to  in- 
clude in  their  award  of  damages  interest  on 
the  sum  found  to  represent  the  diminished 
value  of  the  property  in  consequence  of  the' 
injury  from  the  time  that  the  cause  of  action 
accrued.  When  interest  may  be  allowed  as 
part  of  the  damages,  in  actions  of  this  char- 
acter, is  a  question  which,  in  the  present 
state  of  the  law,  is  involved  in  much  confu- 
sion and  uncertainty,  and  in  regard  to  which 
the  decisions  of  the  courts  are  not  harmoni- 
ous. It  is  perhaps  impossible  to  formulate 
a  general  rule  embracing  every  possible  case. 
The  tendency  of  courts  in  modern  times  has 
been  to  extend  the  right  to  recover  interest 
on  demand  far  beyond  the  limits  Avithin 
which  that  right  was  originally  confined. 
What  seemed  to  be  the  demands  of  justice 
did  not  permit  the  principle  to  remain  sta- 
tionary, and  hence  it  has  been  for  years  in  a 
state  of  constant  evolution.  This,  in  some 
measure,  accounts  for  many  of  the  apparently . 
contradictory  views  to  be  found  in  the  ad- 
judged cases.  There  are  certain  fundamentab 
principles,  however,  established  by  the  deci- 
sions in  this  state,  which,  when  properly  ap- 
plied, will  aid  in  the  solution  of  the  question. 
There  is,  of  course,  a  manifest  distinction, 
always    to    be    observed,    between    actions 


DAMAGES   FOK   NONPAYMENT   OF   MONEY-INTEUEST. 


.2'J7 


sounding  in  tort  and  actions  upon  contract. 
In  the  latter  class  of  actions  there  is  not 
much  difficulty  in  ascertaining  the  rule  as  to 
interest  until  we  come  to  unliquidated  de- 
mands. The  rule  in  such  cases  has  quite  re- 
cently been  examined  m  this  court,  and  prin- 
ciples stated  that  will  furnish  a  guide  in 
most  cases.  White  v.  Miller,  78  N.  Y.  393. 
We  are  concerned  now  only  with  the  rule 
applicable  in  actions  of  tort.  The  right  to 
interest,  as  a  part  of  the  damages,  in  actions 
of  trover  and  trespass  de  bonis  asportatis, 
was  given  first  in  England  by  St.  3  &  4  Wm. 

IV.  'J"hc  recovery  was  not,  however,  allow- 
ed by  that  statute  as  matter  of  right,  but  in 
the  discretion  of  the  jury.  The  earlier  cases 
in  this  state  followed  the  rule  thus  establish- 
ed in  England,  and  permitted  the  jury,  in 
their  discretion,  to  allow  interest  in  such 
cases.    Beals  v.  Guernsey,  8  Johns.  446;  Hyde 

V.  Stone,  7  Wend.  354;  Bissell  v.  Hopkins,  4 
Cow.  53;  Rowley  v.  Gibbs,  14  Johns.  385. 
The  principle  that  the  right  to  interest  in 
such  cases  was  in  the  discretion  of  the  jury, 
was,  however,  gradually  abandoned,  and  now 
the  rule  is  that  the  plaintiff  is  entitled  to  in- 
terest on  the  value  of  the  property  converted 
or  lost  to  the  owner  by  a  trespass  as  matter 
of  law.  The  reason  given  for  this  rule  is 
that  interest  is  as  necessary  a  part  of  a  com- 
plete indemnity  to  the  owner  of  the  property 
as  the  value  itself,  and  in  fixing  the  damages 
is  not  any  more  in  the  discretion  of  the  jui-y 
than  the  value.  Andrews  v.  Durant,  18  N. 
Y.  496;  McCormick  v.  Railroad  Co.,  49  N.  Y. 
315;  Turnpike  Co.  v.  City  of  Buffalo,  58  N. 
Y.  039;  Parrott  v.  Ice  Co.,  40  N.  Y.  369.  It 
is  diflicult  to  perceive  any  sound  distinction 
between  a  case  where  the  defendant  converts 
or  carries  aAvay  the  plaintiff's  horse  and  a 
case  Avhere,  through  negligence  on  his  part, 
the  horse  is  injured  so  as  to  be  valueless. 
There  is  no  reason  apparent  for  a  different 
rule  of  damages  in  the  one  case  than  in  the 
other.  In  an  early  case  in  this  state  the 
principle  was  recognized  that  interest  might 
be  allowed,  by  way  of  damages,  upon  the 
sum  lost  by  the  plaintiff  in  consequence  of 
defendant's  negligence.  Thomas  v.  Weed,  14 
Johns.  255.  We  think  the  rule  is  now  set- 
tled in  this  state  that,  where  the  value  of 
property  is  diminished  by  an  injury  wrong- 
fully inflicted,  the  jury  may,  in  their  discre- 
tion, give  interest  on  the  amount  by  which 
the  value  is  diminished  from  the  time  of  the 
injury.  That  is  the  rule  laid  down  in  the 
elementary  books  and  sustained  by  the  ad- 
judged cases.  1  Se<3g.  Dam.  (Sth  Ed.)  §§ 
317,  320;  Walrath  v,  Redfield,  18  N.  Y.  457, 
462;  Mairs  v.  Association,  89  N.  Y.  498;  Dur- 
yee  v.  Mayor,  etc.,  90  N.  Y.  477,  499;  Home 
Ins.  Co.  V.  Pennsylvania  R.  Co.,  11  Hun,  182, 
188;  Moore  v.  Railroad  Co.,  120  N.  Y.  071,  27 
N.  E.  791;  Railroad  Co.  v.  Ziemer,  121  Pa. 
St.   500,  17  Atl.   187. 

There  is  a  class  of  actions  sounding  in  tort, 
in  which  interest  is  not  allowable  at  all,  such 


as  assault  and  battery,  slander,  libel,  seduc- 
tion,  false  imprisonment,  etc.  There  is  au- 
other  class  in  which  the  law  gives  interest  on 
the  loss  as  part  of  the  damages,  such  as  tro- 
ver, trespass,  replevin,  etc.;  and  still  a  third 
class  in  which  interest  cannot  be  recovered 
as  of  right,  but  may  be  allowed  in  the  discre- 
tion of  the  juiy,  according  to  the  circumstan-- 
ces  of  the  case.  This  action  belongs  to  the 
latter  class,  and,  as  we  have  construed  the 
charge  as  a  direction  that  the  jury  might,  in 
their  discretion,  allow  interest  on  the  dimin- 
ished value  of  the  horse,  it  was  not  erroneous. 
Our  attention  has  been  called  to  the  case 
of  Sayre  v.  State,  123  N.  Y.  291,  25  N.  E.  103, 
and  it  is  urged,  upon  the  authoi*ity  of  that 
case,  that  interest  cannot  be  allowed  in  any 
case  for  the  recovery  of  unliquidated  dam- 
ages arising  from  negligence.  We  think  that 
the  case,  when  correctly  understood,  does  not 
sustain  the  contention,  but,  in  effect,  holds 
the  contrary.  In  that  case  a  party  appealed 
from  the  decision  of  the  board  of  claims  up- 
on an  award  in  his  own  favor,  and  the  only 
question  was  whether,  upon  the  evidence 
and  findings,  the  claimant  had  been  allowed 
all  the  damages  that  he  was  entitled  to,  and 
this  court  not  only  affirmed  his  right  to  all 
the  damages  that  the  boaid  had  awarded 
him,  but  increased  the  award  from  $3,000  to 
$8,130.  The  claim  was  based  upon  the  negli- 
gent act  of  the  state  in  overflowing  the  lands 
of  the  claimant,  from  which  the  damages 
claimed  resulted.  The  board  of  claims  al- 
lowed no  interest,  nor  did  this  court.  In  add- 
ing to  the  award  a  sum  of  over  $5,000,  this 
court  acted,  in  some  sense,  as  a  court  of 
original  jurisdiction,  and  in  making  up  the 
sum  which  was  to  constitute  the  final  award 
it  refused  to  allow  an  item  of  interest  claim- 
ed. Now,  it  is  admitted  that  a  court  or  jury, 
charged  with  the  duty  of  making  up  the 
amount  of  damages  in  such  cases,  may  refuse 
to  allow  interest,  and  that  is  precisely  what 
this  court  did,  and  nothing  more,  and  there- 
fore the  case  is  in  harmony  with  the  i-ule 
above  stated,  and  with  the  cases  from  which 
we  have  deduced  it.  It  is  far  from  holding 
that  it  is  error  when,  in  such  a  case,  the  jury, 
or  the  original  court,  after  considering  all  the 
facts  and  circumstances  bearing  upon  the 
loss,  allows  interest,  in  the  exercise  of  discre- 
tion, as  part  of  the  iudemnity  to  which  the 
party  is  entitled.  It  simply  recognized  the 
rule  that  interest  in  such  cases  was  not  a 
matter  of  right,  but  of  sound  discretion,  and 
held  that  the  claimant  was  fully  indemnified 
for  his  loss  without  adding  interest.  It  is 
true  that  the  learned  judge  who  gave  the 
opinion  cited  the  cases  arising  upon  contract 
in  which  it  has  been  held  that  interest  is  not 
allowable,  and  remarked  that  he  found  no 
ease  justifying  an  allowance  of  interest.  That 
was  probably  an  inadvertence,  but  the  deci- 
sion refusing  interest  was  right,  though  the 
reasons  may  have  been  based  upon  a  princi- 
ple applicable  to  another  class  of  actions.    It 


238 


DAMAGES   FOR   NONPAYMENT   OF   MONEY— INTEREST 


must  be  remembered  that  the  court  was  not 
reviewiug  any  question  decided  below  in  re- 
gard to  interest,  but  seeliing  to  make  up 
for  itself  a  new  award  from  the  items  of  the 
claim  appearing  in  the  record,  and  whatever 
was  said  by  way  of  argument,  and  as  the 
reason  for  throwing  out  an  item  of  interest 
on  a  sum  claimed  to  have  been  expended  in 
restoring  or  reclaiming  the  land,  cannot  be 


considered  as  the  judgment  of  the  court  ou 
the  question  now  under  consideration.  That 
question  was  not  noticed  in  the  argument, 
and  was  not  Involved  in  the  case,  except,  per- 
haps, as  a  matter  of  discretion.  For  these 
reasons  the  judgment  should  be  affirmed.  All 
concur,  except  EARL,  G.  J.,  and  FINCH  and 
GRAY,  JJ.,  dissenting. 
Judgment  affirmed. 

5 


o- 


.1^ 


BREACH  OF  OUN'riJACTS  i;i:sri:CTING  PEK.SONAL  PltUl'KUTY. 


239 


TRIGG  ft  al.   V.   CT.AY   ct   al. 

(13  S.  E.  434,  88  Va.  330.) 

Supreme   Court   of   Appeals    of   Virginia.    .Tuly 
23,  1891. 

Appeal  from  decree  of  circuit  court  of 
Scott  county  rendered  March  27,  1S<.»0,  in  a 
suit  wherein  T.  P.  Tiigg,  A.  xMcBradley, 
and  H.  Fuf-ate,  survivinnpartnersof  llietn- 
selves  and  James  C.  Greenway,  deceased, 
partners  doing  business  in  tiie  firm  nau.e 
Tiisg:,  Fugate  &  Co.,  were  complainants, 
and  H.  B.  Clay,  Jr.,  and  W.  D.  Kenner, 
partners  in  the  firm  name  of  H.  B.  Clay, 
Jr.,  &  Co..  were  defendants.  The  decree 
being  adver.se  to  the  complainants,  they 
appealed.     Opinion  states  the  case. 

Danl.  Trigg,  for  appellants.  Holdman 
&  Ewing  and  J.. i.  A.Powell,  for  appellees. 

LACY,  J.     Tlie  suit  is  a  foreign  attach- 
ment   in   equity,  brought   to   attach    the 
property  situated  within  the  jurisdiction  of 
the  court  belonging  to  non-resident  defend- 
ants, and  to  subject  the  same  to  the  satis- 
faction of  the  debt  of  the  plaintiffs.     The 
case  is  briefly  as  follows:    The  appellants, 
a    tirm   of  lumber   merchants   resident  at 
Abingdon,  in  Virginia,  made  a  contract  by 
which  they   agreed   to   buy,   at  a  stated 
price,  lumber  of  agreed   dimensions  from 
the  appellees,   a  firm   of  lumber  getters, 
resident  at   Kogersville,   in    the    state    of 
Tennessee;  the  lumber  to   be  delivered  at 
Clinchport.  in   Scott  county,  in   Virginia, 
from   500.000  feet   to  700,000  feet   thereof; 
and   the  plaintiffs   agreed   to    accept   the 
drafts  of  the  said  appellees  to  the  amount 
of  $3,000.     And  on  the  28th  day  of  Novem- 
ber, 1888,  the  date  of  the  contract,  the  ap- 
pellee H.  B.  Clay,  Jr.,  of  the  said  firm,  rep- 
resented to  the  appellants   that  300,000  to 
400,000  feet   were  already  cut   and  dry  or 
drying;  and  that  the  residue. necessary  to 
compensate  for  the  $3,000  in  drafts  to  be 
accepted   at  60  days,  should    be  delivered 
at    Clinchport     at    the    maturity    of    the 
drafts.     The  drafts    were  all  made  in  the 
first   week   in   December,  1888,  a  few  days 
after  the  contract   was  made,  which  was 
on  the  28th  day  of  November,  as  has  been 
stated.    The  lumber  was  not  delivered,— 
not  a  foot  of  it,— and  the  drafts  were  neg- 
lected and  allowed  to  fall   upon  the  hands 
of  the  plaintiffs,  when  the  lumber  had  not 
yet   been    delivered,   and    the  drafts    had 
been   paid.     So   the  plaintiffs,  as  had  been 
agreed  betv\een  thepartiesin  case  the  said 
contingency  should   arise  that  the  drafts 
should  have  to  be  paid  before  the  lumber 
in   sufficient   (juantity  had  arrivfd,  draft- 
ed back  upon  the  defendants  for  the  money 
thus  paid  out;  but  this  action  was  treated 
with   derision  by   the  appellee,    and    the 
draft  dishonored.     Upon    the  hearing,  the 
circuit  court  decreed  in  favor  of  the  plain- 
tiffs for  the  .f3,000  paid  on  the  draft   and 
the  costs   of  protest,  etc.,  and   referred  it 
to   a  commission   to  ascertain  what  dam- 
ages the  plaintiffs  had  sustained.     It  was 
proved  that  the  defendants  had  absolute- 
ly refused  to  fulfill   the  contract  upon  the 
ground   that  the  luniber  had  been  priced 
too   low  by  them,  and   also  refused  to   re- 
fund the  money  paid  them  under  the  con- 
tract.   The    plaintiffs    proved   that    they 


were    lumber     uicrcliaiits,    and,   as    was 
known   to   the  defendants,  purchased  the 
lumber  for   sale;    and    they    proved   that 
they  had    actujdly  placi-d    this    lumber   to 
their  customers  at  a  profit  which  amount- 
ed to  .f  1,000,  but  which  they  were  made  to 
lose    by    the  wrongful   act  and  fraudulent 
conduct   of   the  defendants;  and  the  com- 
missioner reported  that  tiie  said  plaintiffs 
were  entitled   to   this  sum  of  actual  dam- 
ages   incurred    by   them,   estimating    the 
profits   on   the  maximum    amount  of  the 
lumber  to  be  delivered  under  the  contract. 
But   the  defendants  excepted   to  this  re- 
port, "because  the  damage  allowed  is  ex- 
cessive,  and   not  supf)orted   by   law;  be- 
cause   the    commissioner    had   based    his 
damages    on    supposed     profits,    instead 
of  the  market  value  of   the  lumber  at  the 
places   of  delivery."    The  circuit  court  by 
its   decree    of    March    27,   1890,   sustained 
these  exceptions,  and  held  that  the  plain- 
tiffs were  entitled  to   no  specific  damages 
for  the  non-performance  of   the  contract 
set   out  in    the  plaintiffs'  bill,  and  rested 
the  matter   where  it   had  been  placed  by 
the  former  decree,  which   decreed   in  favor 
of   the   plaintiffs  for   the  amount  paid  on 
the  said   drafts.     From  this  decree  the  ap- 
peal is  here.    The  idea  of   the  circuit  court 
was  that  the  general  rule  applied  which 
fixed   the  difference  between    the   market 
price  at  the  place  of  delivery  and  the  con- 
tract price  agreed   to  be  paid.     Upon  the 
principle  that  the  buyer  could  supply  him- 
self in  the  market  overt,  and  when  he  had 
been  compensated   for  the  excess   in   the 
cost,  over  and  above  what  his  cost  would 
have  been    under    the   contract,   he    had 
nothing   more   to  complain   c»f.     But  this 
case  does  not  come  within  that  principle. 
(1)  because  there  is  no   market   at  that 
place  from  which,  or  in  which,  the  plain- 
tiffs could  supply  their  need;  (2)  becau.se 
there  is  no   other  market  practically  near 
enough   to  purchase  the  lumber  and  add 
tran.sportation   to   the   market  price;   (3) 
because     the    plaintiffs,    relying    on    the 
promises  and  good  faith  of  their  barga'n- 
ers,  as  they  had   a  right  to  do,  when  they 
had  themselves  fully   complied    on    th*^ir 
part  by  paying  the  purchase  money  there- 
for, had  contracted  to  sell  this  lumber  at  a 
profit,  which   profit  is  the  basis  on  which 
the  commissioner  assessed  his  damages. 

In  a  case  like  this,  with  such  circumstan- 
ces as  we  have  here,  the  case  where  there 
had  been  a  contract  to  resell  them  at  an 
agreed  price,  and  when  there  is  no  market 
to  affoid  a  surer  test,  the  price  at  which 
they  were  bargained  to  a  purchaser  affo'-ds 
the" best  and  indeed  very  satisfactory  evi- 
dence of  their  value.  This  was  a  purchase 
in  that  market,  and  there  was  no  more  for 
sale.  In  a  case  of  such  actual  sale,  why 
should  the  court  go  into  conjecture  as  to 
what  the  goods  were  there  worth?  And 
again,  if  lumber  could  have  been  purchased 
and  brought  there  at  a  lower  price,  there 
is  not  only  no  proof  of  it,  but  we  have  sat- 
isfactory proof  to  the  contrary,  because 
the  defendants  had  the  lumber,  and  were 
by  their  solemn  contract  under  the  highest 
obligations  to  deliver  it;  to  say  nothing 
of  the  requirement  of  common  honesty, 
when  they  had  agreed  to  do  it,  and  had 
collected  the  purchase  price.  And  yet  they 
preferred  to  break  their  contract,  and  dis- 


240 


BREACH  OF  OONTIJACTS  RESrECTING  PERSONAL  PROl'ERTY. 


lioiiorerl  their  bank  obligation,  rather 
than  deliver  this  Uiniber  at  the  agreed 
price,  which  they  declared  had  heen  bar- 
gained at  too  low  a  price.  In  Wood's 
Mayne  on  Damages.  §  22,  it  is  said :  "But, 
if  they  [the  goods]  cannot  be  purchased  for 
want  of  a  market,  they  must  be  estimated 
in  some  other  way.  If  there  had  been  a 
contract  to  resell  them,  the  price  at  which 
such  Contract  was  made  will  be  evidence 
of  their  value. "  In  the  American  and  En- 
glish Eneycloptedia  of  Law  it  is  said: 
"  Wliere  there  is  no  market  at  the  place  of 
deli  very,  the  price  of  thegoods  in  the  near- 
est market,  with  the  cost  of  transporta- 
tion added,  determines  their  value."  Ice 
Co.  V.  Webster,  68  Ale.  403;  Gritfin  v.  Col- 
ver,  16  N.  Y.  4S9.  In  the  case  of  Culin  v. 
Glass-Works,  108  Pa.  St.  220,  it  is  said: 
"Upon  the  bi-each  of  a  contract  to  furnish 
goods,  when  similar  goods  cannot  be  pur- 
chased in  the  market,  the  measure  of  dam- 
ages is  the  actual  loss  sustained  by  the 
purchaser  by  reason  of  the  non-delivery.  " 
A  distinction  is  drawn  in  some  of  the  cases 
between  a  resale  made  at  an  advance  sub- 
sequent to  a  contract  of  purchase  and  a 
resale  made  at  an  advance  before  the  con- 
tract of  purchase,  which  was  known  to 
the  seller  of  the  goods.  Carpenter  v. 
Bank,  119  111.  354,  10  N.  E.  Rep.  18.  This  is 
rather  a  fanciful  distinction.  It  is  not  in 
accord  with  the  oi'dinary  usages  of  trade 
that  a  dealer,  a  man  buying  to  sell  again, 
should  disclose  his  dealings  with  the  same 
goods  at  a  proHt  to  his  vendor.  But.  if 
there  were  any  sound  principle  upon  which 
this  could  rest,  if  the  seller  could  be  sup- 
posed to  enter  into  his  contract  upon  the 
basis  of  a  j-esale  in  which  he  had  no  inter- 
est, still,  in  this  case,  it  is  reasonable  to 
suijpose  that  alumbergetterselling700,000 
feet  of  lumber  to  adealer  in  lumber  should 
know  (1)  that  it  was  for  a  resale,  (2)  that 
this  resale  was  to  be  on  a  profit,  and  (3) 
thatheshould  know  that  his  vendee  would 
be  damaged  to  the  amount  of  his  profit,  if 
the  vendor  should  prove  faithless.  But 
the  true  basis  of  the  general  rule  is  that 
when  there  is  a  market,  the  vendee  cannot 
be  damaged,  except  in  the  difference  be- 
tween what  the  lumber  did  actually  cost 
him  and  what  he  hafi  purchased  it  at  from 
the  seller  to  him.  But  this  rule  can  have, 
upon  reason,  no  application  whatever  to 
a  case  where  there  is  no  market,  (1)  be- 
cause the  disappointed  purchaser  cannot 
buy  in  that  market  when  there  is  no  mar- 
ket to  buy  in,  and  (2)  because  the  market 
price  cannot  be  ascertained  when  there  is 
no  market. 

Under  the  circumstances  of  this  case,  the 
comn^.issioner  ascertained  the  true  and 
just  amount  of  the  damages.  It  has  been 
olten  held  that  profits  which  are  the  direct 
and  immediate  fruits  of  the  contract  are 
recoverable.  There  are  many  cases  in 
which  the  profit  to  be  made  by  the  bar- 
gain is  the  only  thing  purchased,  and  in 
such  cases  the  amount  of  such  jirotit  is 
strictl^^  the  measure  of  damages.  Wood's 
Mayne,  Dam.  p.  S2.  It  has  been  held  that, 
when  the  defendant  refused  to  allow  the 
ccjntracts  to  be  executed,  the  jury  should 
allow  the  plaintiffs  as  m\ich  as  the  con- 
tract would  have  benefited  them, — profits 
or  advantages  which  are  the  direct  and 
iitimediate  fruits   of  the  contract,  entered 


into  l)etween  the  parties,  are  part  and  par- 
cel of  the  contract  itself,  entering  into  and 
constituting  a  portion  of  itsevery  element, 
something  stipulated  for,  and  the  right  to 
•tlie  enjoyment  of  which  is  just  as  clear  and 
plain  as  to  the  fulfillment  of  any  other 
stipulation.  They  are  presumed  to  have 
been  taken  into  consideration  and  delib- 
erated upon  liefore  thecontract  was  made, 
and  formed,  perhaps,  the  only  inducement 
to  the  arrangement.  If  the  inducement  to 
the  plaintiffs  to  buy  this  lumber,  they  be- 
ing lumber  dealers,  and  trading  inlumber. 
was  not  the  profits  they  were  to  make  by 
a  resale,  what  was  their  inducement? 
And  if  the  sellers  did  not  undei-stand  and 
contemijlate  this  resale  on  a  profit,  what 
contemplation  on  the  subject  can  be  rea- 
sonably ascribed  to  them?  See  Masterton 
V.  Mayor,  etc.,  7  Hill,  62;  Morrison  v.  Love- 
joy,  6"Minn.319,  (Gil.224;)  Fox  v.  Harding. 
7  (Uish.  516 ;  Devlin  v.  Mayor,  etc.,  63  N.  Y.  8 ; 
McAndrews  v.  Tippett,  39  N.  J.  Law,  105; 
Kendall  BankNoteCo.  v.  Commissioners  of 
the  Sinking  Fund, 79  Va.  563;  Bell  v.  Reyn- 
olds, 78  Ala.  511.  An  examination  of  the 
cases  will  show  that  the  courts  have  been 
endeavoring  to  establish  rules  by  the  ap- 
plication of  which  a  party  will  be  compen- 
sated for  the  loss  sustained  by  the  breach 
of  contract ;  in  (jther  words,  for  the  bene- 
fits and  gain  he  would  have  realized  from 
its  performance,  and  nothing  more.  It  is 
sometimes  said  that  the  profit  that  would 
iiave  been  derived  from  performance  can- 
not be  recovered  ;  but  this  is  only  true  of 
such  as  are  contingent  upon  some  other 
operation.  Profits  which  certainly  would 
have  been  realized  but  for  the  defendant's 
default  are  recoverable.  It  is  not  an  un- 
certainty as  to  the  value  of  the  benefit  or 
gain  to  be  derived  from  performance,  but 
an  uncertainty  or  contingency  whether 
such  gain  or  benefit  can  be  derived  at  all. 
It  is  sometimes  said  that  speculativedam- 
ages  cannot  be  recovered  becausi-  the 
amount  is  uncertain,  but  such  remarks 
will  generally  be  found  applicable  to  such 
damages  as  it  is  uncertain  whether  sus- 
tained at  all  from  the  In-each.  Sometimes 
the  claim  is  rejected  as  being  too  remote. 
This  is  another  mode  of  saying  that  it  is 
uncertain  whether  su(;h  damages  resulted 
necessarily  and  immediately  from  the 
breach  complained  of.  The  general  rule  is 
that  all  damages  resulting  necessarily  and 
immediately  and  directly  from  the  breach 
are  recoverable,  and  not  those  that  are 
contingent  and  uncertain.  The  latter  de- 
scription embraces,  as  1  think,  such  only 
as  are  not  the  certain  result  of  the  breach, 
and  does  not  embrace  such  as  are  the  cer- 
tain result  of  the  breach,  but  uncertain  in 
amount, for  which  the  plaintiff  will  be  fully 
compensated  by  recovering  the  value  of 
his  bargain.  He  ought  not  to  have  more, 
and  I  think  he  is  not  precluded  from  re- 
covering this  by  any  infirmity  in  the  law 
in  ascertaining  ilie  amount.  Wakeman  v. 
Manufacturing  Co.,  lol  N.  Y.  205.  4  xN.  K. 
Rep.  2G1;  Tavlor  v.  Bradley,  4  Alb.  Dec. 
:!G3;  Bell  v.  Reynolds,  78  Ala.  511.  In  thi» 
case  the  report  of  the  commissioner  wa» 
upon  the  c(jrrect  principle,  and  tiie  cii'cuit 
court  erred  in  sustaining  the  defendants' 
exception  to  the  said  report;  foi- said  ex- 
ceptions should  have  been  overrated,  and 
the  commissioner's  report  cpufirnud.    Tiie 


BREACH  OF  AGREEMENT  TO  SUPPLY  GOODS. 


241 


decree  of  the  eircnit  court  appealed  from 
here  is  therefore  erroneous,  and  the  same 
will  be  reversed  antl  annulled,  and  this 
court  will  render  such  decree  as  tlie  said 
circuit  court  ought  to  have  rendered. 

HINTON,  J.,  dissents. 

LEWIS,  P.,  (dissenting.)  In  this  case  I 
dissent  from  the  opinion  of  the  court  and 
am  for  affirming  the  decree  ot  the  circuit 
court  The  case  is  narrowed  down  liy  the 
exception  to  the  commissioner's  report  to 
the  simple  question  of  the  measure  of  dam- 
ages. The  rule  adopted  bj'  this  court  is, 
in  my  opinion,  not  only  unjust,  but  cou- 

LAW  DAM.2d  Ed.— 16 


trary  to  the  long-settled  rule  which  gov- 
erns in  such  cases.  Here  the  measure  ot 
damages  is  hold  to  be  the  loss  sustained 
by  the  appellants  by  reason  of  their  ina- 
bility, on  account  of  the  default  of  the  ap- 
pellees, to  fulfill  certain  contracts  made  by 
them  for  the  sale  and  delivery  of  lumber 
to  other  parties.  But  those  contiacts 
were  Collateral  to  the  contract  between 
the  parties  to  this  appeal,  and  were,  in 
point  of  time,  subsequent  thereto.  They 
could  not,  therefore,  have  been  in  the  con- 
templation of  the  parties  when  the  con- 
tract was  marie,  the  breach  ul  which  is 
the  subject  of  this  controversy. 
Decree  reversed. 


242 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


JORDAN  et  al.  v.  PATTERSON  et  al. 

(35  Atl.  521,  67  Conn.  473.) 

Supreme  Court  of  Errors  of  Connecticut.     April 
15,  1896. 

Appeal  from  superior  court,  Fairfield  coun- 
ty;  Robinson,  Ju(l.ije. 

Action  by  Jordan,  Marsh  &  Co.  against 
James  T.  Patterson  and  others,  doing  busi- 
ness as  the  Patterson  Bros.  Knitting  Com- 
pany. Judgment  for  plaintiffs,  and  they  ap- 
peal.    Reversed. 

John  H.  Perry  and  George  E.  Hill,  for  ap- 
pellants. Morris  W.  Seymoiu-,  ,Tohn  C.  Cham- 
berlain, and  Howard  H.  Knapp,  for  appel- 
lees. 

ANDRE^VS,  C.  J.  This  action  was  brought 
to  recover  damages  for  the  nonperformance 
of  a  contract.  The  plaintiffs  are  large  deal- 
ers in  dry  goods  at  wholesale  and  by  ret.ail. 
The  defendants  are  manufacturers  of  knit 
underwear.  The  complaint  alleged  general- 
ly that  on  the  16th  day  of  ]March,  1S92,  the 
defendants  agreed  to  manufacture  for  the 
plaintiffs  a  large  number  of  knit  underfjar- 
ments,  of  various  styles  and  at  agreed  prices, 
amounting  in  the  whole  to  neariy  12,000  doz- 
en, and  to  deliver  the  same  at  various  times, 
but  all  before  the  1st  day  of  December,  1802, 
for  which  the  plaintiffs  were  to  pay;  that 
the  plaintiffs  contracted  for  these  goods  with 
the  intent,  as  the  defendants  knew,  to  resell 
the  same  to  other  parties;  that  at  the  date 
of  said  contract  they  had  bargained  to  sell  a 
part  of  said  garments  to  other  persons  at  a 
profit;  that  afterwards,  and  before  the  time 
•^\hen  said  goods  were  to  be  delivered,  they 
bargained  to  sell  the  balance  of  the  same  to 
certain  other  persons  at  a  profit;  that  the 
defendants  delivered  to  the  plaintiffs,  in  pur- 
suance of  the  said  agreement,  160  dozen  of 
the  said  goods,  but  neglected  and  refused  to 
deliver  the  remaining  part, — and  claimed 
damag-es  to  the  amount  of  $10,000.  The  de- 
fendants' answer  denied  the  making  of  the 
said  contract  alleged  by  the  plaintiffs,  and 
set  up  a  different  one,— a  conditional  one; 
and  they  said,  that  in  performance  of  the 
contract  so  alleged  by  them,  they  furnished 
the  said  160  dozen  of  said  garments,  but  that 
the  plaintiffs  neglected  to  perform  the  condi- 
tions of  said  last-mentioned  contract  on  their 
part  to  be  performed,  and  therefore  they  (the 
defendants)  did  not  furnish  any  more  of  said 
goods.  The  answer  also  demanded  pay  for 
the  goods  the  defendants  had  so  furnished, 
and  damages  for  the  nonperformance  by  the 
plaintiffs. 

The  finding  of  the  court  shows  that  there 
was  evidence  that  the  parties  had  had  deal- 
ings with  each  other  prior  to  the  10th  day  of 
Februaiy,  1892;  that  the  plaintiffs  had  pur- 
chased of  the  defendants  garments  of  their 
manufacture,  some  of  which  were  then  man- 
ufactured,  and   some  of  which  were  to  be 


thereafter  manufactured  and  delivered,  and 
which  were  in  fact  so  manufactured  and  de- 
livered, but  that  on  said  day  there  was  no 
contract  subsisting  between  them;  that  be- 
tween the  said  10th  day  of  February,  1892, 
and  the  16th  day  of  INIarch,  following,  the 
plaintiffs  sent  to  the  defendants  14  separate 
orders  for  goods  of  their  manufacture,  each 
one  duly  numbered  and  signed,  specifying 
the  number,  quality,  style,  and  price  of  the 
goods  ordered,  and  the  date  when  they  were 
to  be  delivered,  as  well  as  the  date  of  pay- 
ment; that  on  said  16th  day  of  March,  1892, 
the  defendants  sent  a  letter  to  the  plaintiffs 
as  follows:  "Office  of  the  Patterson  Brothers 
Knitting  Co.  Ladies',  Gents',  and  Children's 
Fine  Knit  Underwear.  Bridgeport,  Conn., 
March  16,  1892.  Messrs.  Jordan,  Marsh  & 
Co.,  Boston,  ]Mass.— Gentlemen:  We  are  in 
receipt  of  the  following  contracts,  for  which 
we  thank  you.  [Then  followed  a  description 
of  the  14  orders  above  referred  to,  by  th«ir 
numbers  and  amounts.]  Youi's,  truly  [Sign- 
ed] H.  B.  Odell,  Manager."  It  is  also  found 
that  the  defendants  delivered  to  the  plain- 
tiffs 160  dozen  of  the  goods  mentioned  in 
said  orders.  There  was  no  claim  made  that 
Odell  was  not  the  duly-authorized  agent  of' 
the  defendants,  or,  at  any  rate,  no  claim  that 
the  question  of  his  agency  was  not  submitted 
to  the  jury  AA'ith  proper  instructions.  The 
case  was  tried  on  an  issue  closed  to  the  juxy, 
and  the  plaintiffs  had  a  verdict  for  an  amount 
in  damages  which,  they  assert,  is  veiy  much 
less  than  they  are  entitled  to  have;  and  they 
have  appealed  to  this  court,  alleging  various 
errors  in  the  trial  court. 

The  plaintiffs  claimed  that  the  said  orders, 
and  the  letter  of  March  16,  1892,  constituted 
one  contract,  as  to  all  the  goods  named  in 
all  the  orders,  and  that  it  was  the  contract 
on  which  this  action  was  brought;  that  the 
letter  was  afterwards  ratified  and  confirmed 
by  the  defendants  themselves  as  an  accept- 
ance of  all  the  orders,  and  was  so  treated 
by  them,  because  they  delivered  a  portion  of 
the  goods  under  the  orders  generally.  The 
defendants,  on  their  part,  claimed  that  the 
letter  of  March  16,  1892,  was  not  an  accept- 
ance; that,  if  an  acceptance  .at  all,  it  was 
an  acceptance  of  only  some  one  of  the  or- 
ders; that  each  of  the  orders  stated  a  sepa- 
rate contract,  and  must  be  separately  de- 
clared on,  and,  as  the  complaint  declared  on 
one  contract  only,  in  no  event  could  there' 
be  a  recovery  in  this  case  on  more  than  one 
of  such  orders.  Upon  this  part  of  the  case 
the  judge  instructed  the  jury  as  follows:  "It 
is  for  you  to  say  what  language  the  paper 
[i.  e.  the  letter  of  March  16,  1892]  speaks, 
and  what  the  intention  Avas  in  the  use  of  the 
language  it  contains.  It  is  for  you  to  ^ay 
whether  a  person  who  sends  such  a  paper 
as  this  to  another  under  the  circumstances 
here  claimed,  and  then  goes  forward  and  be- 
gins to  fill,  and  does  fill,  some  of  these  very 
orders  named  in  the  paper  so  sent  (if  such 


BEEACH  OF  AGREEMENT  TO  SUPPLY  GOODS. 


243 


be  the  facts),  could  fairly  be  said  to  have 
had  no  intention  to  speak  the  language  of 
acceptance   and   promise   in   that   paper,    or 
had  no  intention,  by  the  language  used,  to 
accept,   and    promise  to   fill,    tlie   orders   he 
named.     These  are  matters  for  you  to  deter- 
mine after  a  careful  and  serious  examina- 
tion   of   the    evidence    and   claims   on    both 
sides."     The    substance   of   this    instruction 
Avas  repeated  by  the  judge  twice  or  three 
times  in  the  course  of  his  charge,  and  at  one 
time    with   language   which  apparently    im- 
plied that  the  jury  might  select  one  of  the 
separate    prders,    and,   if  that    was    broken, 
render  a  verdict  for  damages  only  as  to  such 
particular  contract.     This  was  error.     There 
was  no  ambiguity  or  doubt  as  to  the  terms 
of  the  orders,  or  of  the  letter  of  March  IGth, 
and  there  was  no  suggestion  of  any  fraud. 
Under   such   circumstances,   it  was   for  the 
judge,   and  not  for  the  jury,   to  say   what 
these  writings  meant.     It  was  a  question  of 
law,  and  not  of  fact.     Gibbs  v.  Society,  38 
Conn.    153,    1G7;    Hotchkiss    v.    Higgius,    52 
€onn.  2(>5.  213;    1  Starkie,  Ev.  429;  1  Greenl. 
Ev.  §  277.     The  orders  and  the  letter  were 
offered  as  proof  of  a  contract  between  the 
parties.     If  a  contract  at  all,  it  was  a  con- 
tract in  writing.     As  such,  its  interpretation 
—its  legal  effect— was  a  question  of  law,  for 
the  jiidge.     Nor  was  such  interpretation  the 
less  a  question  of  law  because  the  construc- 
tion might  have  been  aided  by  the  use  of 
extrinsic  evidence,  such  as  the  business  of 
tlie    parties,    their   knowledge    each    of    the 
business    of   the    other,    and   their   previous 
dealings,    including   as    well    what    may    be 
called    the    practical    construction    put    upon 
the  contract  by  the  conduct  and  acts  of  the 
parties.     The  judge,  by  the  aid  of  all  the 
undisputed  facts  in  the  case,  could  put  him- 
self  into  the   situation   of   the  parties,   and 
look  at  the  contract  from  their  standpoint. 
But,  from  wliatever  source  light  was  thrown 
upon  the  contract,   what  its   meaning   was. 
what  promises  it  made,  what  duties  or  obli- 
gations it  imposed,  was  a  question  of  law, 
for  the  judge.     It  was,  after  all,  the  legal 
reading  and  interpretation  of  what  was  writ- 
ten.    See  Smith  v.  Faulkner,  12  Gray,  2.51, 
2.54;    Brady  v.  Cassidy,   KM  N.  Y.  147,  155, 
10  N.  E.  131;    Neilson  v.  Harford,  8  Mees.  & 
W.  805,  823.     In  the  light  of  the  undisputed 
facts   in   this   case,   the   trial   judge    should 
have  Instructed  the  jury  that  the  letter  of 
March  IG,  1892,  v/as  an  acceptance  of  all  the 
orders  named  in  it.     And,  as  there  was  but 
one  contract  claimed  to  exist  between  these 
parties,    such    instruction    would,    in    effect, 
have  directed  them  to    exclude   from   their 
consideration  the  conditional  contract  claim- 
ed by  the  defendants. 

The  general  intention  of  the  law  giving 
damages  in  an  action  for  the  breach  of  a  con- 
tract like  the  one  here  in  question  is  to  put 
the  injured  party,  so  far  as  it  can  be  done 
by   money,   in    the    same   position   that   he 


would  have  been  in  if  the  contract  had  been 
performed.     In  carrying  out  this  general  in- 
tention  in   any   given   case,   it   must  be  re- 
membered that  the  altered  position  to  be  re- 
dressed must  be  one  directly  resulting  from 
the  breach.    Any  act  or  omission  of  the  com- 
plaining party  subsequent  to.  the  breach  of 
the  contract,  and  not  directly  attributable  to 
it,  although  it  is  an  act  or  an  omission  which, 
except  for  the  breach,  would  not  have  taken 
place,  is  not  a  ground  for  damages.     In  an 
action  like  the  present  one,  to  recover  dam- 
ages against  the  vendor  of  goods  for  their 
nondelivery  to  the  vendee,  the  general  rule 
Is  that  the  plaintiff  is  entitled  to  recover  in 
damages  the  difference  at  the  time  and  place 
of  delivery  between  the  price  he  had  agreed 
to  pay,  and  the  market  price,  If  greater  tliau 
the  agreed  price.    Such  dilTereuce  is  the  nor- 
mal damage  which  a  vendee  suffers  in  such 
a  case.     And,  if  there  are  no  special  circum- 
stances in  the  case,  a  plaintiff  would,  by  the 
recovery  of  such  difference,   be  put  in  the 
same  position  that  he  would  have  been  in 
If  the  contract  liad  been  performed.    This,  of 
course,   implies  that  there  is  a  market   for 
such  goods,  where  the  plaintiff  could  have 
supplied  himself.     If  there  is  no  such  mar- 
ket, then  the  plaintiff  should  recover  the  ac- 
tual damages  which  he  lias  suffered.     There 
may  be,  and  often  there  are,  special  circum- 
stances, other  than  the  want  of  a  market, 
surrounding  a  contract  for  the  sale  and  pur- 
chase of  goods,  by  reason  of  which,  in  case 
of  a  breach,  the  loss  to  a  vendee  for  their 
nondelivery    is   increased.     In   such   a   case 
the  damages  to  the  vendee  which  he  may 
recover   must,    speaking   generally,    be   con- 
fined  to   such  as  result  from  those   circum- 
stances which  may  reasonably  be  supposed 
to  have  been  in  the  contemplation  of  the  par- 
ties at  the  time  they  made  the  contract.     It 
must  be  remembered,  also,  in  attempting  to 
.carry  out  this  general  intention  of  the  law 
in  any  given  case,  that  any  damages  which 
the  plaintiff  by  reasonable  diligence  on  his 
part  might  have  avoided  are  not  to  be  re- 
garded as  the  proximate   result  of  the  de- 
fendant's acts.    In  the  present  case  the  plain- 
tiffs  claimed  that  at   the   time   of  delivery 
there  was  no  market  in  which  they  could 
procure  such  goods  as  the  defendants  were 
to  deliver  to  them.     This  was  a  fact  which 
might  be  proved  by  the  testimony   of  any 
person  who  had  knowledge  on  the  subject. 
And  if  it  was  true  the  plaintiff's  could  not, 
by  any  diligence  on  their  part,  have  reliev- 
ed themselves  by  such  purchase  from  any 
portion  of  the  damages  which  they  suffered. 
There  were  various  special  circumstances  by 
reason  of  which  the  plaintiff's  claimed  to  re- 
cover damages.     One  was  that  they  contract- 
ed for  the  said  goods  for  the  purpose  of  resell- 
ing them.     It  is  averred  in  the  complaint— 
and  there  appears  to  have  been  evidence  on 
the  trial  tending  to  prove  such  averments— 
that  at  the  time  the  goods  were  contracted  for 


24A 


BREACH  OF  COXTKACTS  RESrECTING  PERSONAL  PROPERTY. 


the  plaintiffs  had  bargained  to  sell  a  portion 
of  the  said  garments  to  other  parties  at  a 
proiit,  and  that  the  defendants  had  knowl- 
edge of  the  subcontracts.  As  to  the  profits 
on  these  subsales,  the  judge  charged  the  jury- 
that  the  plaintiffs  were  entitled  to  recover 
these  as  a  part  of  their  damages,  because,  as 
the  judge  correctly  said,  the  existence  of  these 
subsales  was  known  to  the  defendants  at  the 
time  tliey  contracted  to  furnish  the  goods,  and 
tlie  prolits  that  were  to  be  made  must  be  con- 
sidered as  having  been  contemplated  by  them 
at  that  time. 

It  is  also  averred  in  the  complaint  that, 
soon  after  the  time  the  contract  was  made, 
the  plaintiffs,  relying  on  the  same,  began  to 
sell  tile  balance  of  said  garments  to  other  par- 
ties at  a  profit,  of  which  subcontracts  they 
gave  notice  to  the  defendants  a  reasonable 
time  before  the  date  at  which  the  goods  were 
to  be  delivered.  The  judge  charged  the  jury 
that  these  profits  should  not  be  allowed,  be- 
cause, as  he  said,  these  sales  cannot  be  con- 
sidered to  have  been  in  the  contemplation 
of  the  parties  at  the  time  they  made  their 
contract.  As  the  judge  stated  it,  this  ruling 
was  correct.  Notice  to  the  defendants  after 
their  contract  was  entered  into  would  not  in- 
crease their  liability.  If  these  subsales  could 
not  reasonably  be  considered  to  have  been  in 
the  contemplation  of  the  parties  at  the  time 
they  made  the  contract,  then  the  defendants 
could  not  be  made  liable  for  the  special  prof- 
its to  be  derived  therefrom. 

But  tliere  is  an  aspec+  of  the  question  of  the 
profits  on  these  latter  subsales— which  seems 
not  to  have  been  veiy  clearly  presented — up- 
on which  the  evidence  of  their  terms  might 
have  been  admissible.  The  defendants  had 
knowledge  that  the  plaintiffs  contracted  for 
these  garments  in  order  to  resell  them  to  oth- 
ers. They  were  chargeable  with  knowledge 
that  the  plaintiffs  would  make  such  profits  as 
the  market  price  of  such  goods  would  give 
them.  If  proof  of  the  terms  of  these  last- 
mentioned  subsales  was  offered  for  the  pur- 
pose of  showing  what  the  market  price  of 
such  goods  was  at  the  time  they  were  to  be 
delivered,  then  the  evidence  should  have  been 
received.  The  market  value  of  any  goods 
may  be  shown  by  actual  sales  in  the  way  of 
urdiuary  business. 

It  was  alleged  in  the  complaint  that  by  rea- 
son of  the  default  of  the  defendants  tlie  plain- 
tiffs had  been  obliged  to  pay  large  damages  to 
their  vendees  for  their  failure  to  deliver  to 
them  the  goods  so  bargained  to  them,  and 
they  offered  evidence  to  prove  such  a  pay- 
ment to  one  of  their  vendees,  which  evidence 
was,  on  objection  by  the  defendants,  exclud- 
ed. In  respect  to  this  item  of  damage,  the 
rule  above  stated  furnished  the  proper  test. 
In  restoring  an  injured  party  to  the  same  po- 
sition he  would  have  been  in  if  the  contract 
had  not  been  broken,  it  is  necessary  to  take 
into  the  account  losses  suffered,  as  much  as 
profits   prevented.     And    whenever   the   loss 


suffered,  or  the  gain  prevented,  results  direct- 
ly from  a  circumstance  which  m.iy  reasonably 
be  considered  to  have  been  in  tne  contempla- 
tion of  the  parties  when  entering  into  the 
contract,  the  plaintiff  should  be  allowed  to 
prove  such  loss.  Whether  the  circumstance 
from  which  the  loss  results,  or  the  gain  is 
prevented,  is  or  is  not  one  which  may  be  rea- 
sonably considered  to  have  been  in  the  con- 
templation of  the  parties,  is,  from  the  neces- 
sities of  the  case,  an  introductory  one,  upon 
which  the  judge  must,  in  the  first  instance, 
decide,  before  evidence  either  of  losses  suf- 
fered, or  gains  prevented,  can  be  shown  to  the 
jury.  When  the  admissibility  of  evidence  de- 
pends ui)on  a  collateral  fact,  the  judge  must 
pass  upon  that  fact  in  the  first  place,  and 
then,  if  he  admits  the  evidence,  instruct  the 
jury  to  lay  it  out  of  their  consideration  if  they 
shoidd  be  of  a  different  opinion  as  to  the  pre- 
liminary matter.  The  particular  evidence  ex- 
cluded in  this  case  was  that  of  Edward  J. 
Mitton,  one  of  the  plaintiffs,  to  the  effect  that 
the  plaintiff's  had  paid  to  William  Taylor  & 
Sons,  one  of  their  vendees,  the  sum  of  .$641 
as  damages.  Both  the  objection  to  this  evi- 
dence, and  the  ruling  upon  it,  seem  to  admit 
that  this  subcontract  was  one  of  which  the 
defendants  had  notice.  The  objection  to  it 
was  that  it  was  not  admissible  under  any  al- 
legation in  the  complaint.  But  precisely  this 
sort  of  loss  was  alleged  in  the  complaint  and 
denied  in  the  answer,  and,  unless  other  rea- 
sons existed  for  the  exclusion  of  this  testi- 
mony than  the  one  claimed,  it  should  have 
been  received.  If  the  sa^e  to  Taylor  &  Sons 
was  one  of  those  sales  of  which  the  defend- 
ants had  notice  at  the  time  they  made  their 
contract  with  the  plaintiff's,  tlien  the  evidence 
was  clearly  admissible  for  the  reason  given 
by  the  trial  judge  when  instructing  the  jury 
that  the  profits  from  these  sales  should  be 
allowed. 

For  the  purpose  of  proving  the  subsales,  the 
plaintiffs  offered  the  deposition  of  F.  R. 
Chase,  one  of  their  traveling  salesmen.  In 
the  early  part  of  1S02  he  was  sent  out  by  the 
plaintiffs  to  make  sales  by  sample  of  some  of 
the  goods  wliich  the  defendants  were  to  manu- 
facture. He  was  asked  if  he  knew  by  whom 
these  goods  were  to  be  manufactured.  He 
said  he  did,  through  Mr.  Campbell,  the  plain- 
tiff's' buyer.  This  question  and  answer  were 
objected  to  by  the  defendaits,  and  ruled  out. 
This  objection  seems  to  have  been  made  on 
a  total  misapprehension  of  the  object  of  the 
evidence.  The  witness  was  stating  what  he 
Avas  to  represent  to  his  customers  as  to  the 
manufacture  of  the  goods  he  was  trying  tn 
sell  them.  Both  question  and  answer  should 
have  been  admitted.  Whether  or  not  the 
goods,  when  they  should  be  delivered,  corre- 
sponded with  the  sample  and  with  this  state- 
ment, would  have  been  quite  another  ques- 
tion. 

One  Deland,  a  buyer  for  the  plaintiffs,  tes- 
tified.   He  was  asked,   respecting  certain  of 


BREACH  OF  AGREEMENT  TO  SUPPLY  GOODS. 


245 


the  goods  which  the  defendants  had  contract- 
ed to  deliver  to  the  plaintiffs,  "At  what  price 
would  these  have  been  retailed?"  On  ob- 
jection, he  was  not  permitted  to  answer.  As- 
suming that  Deland  had  knowledge  of  the 
market  price  at  which  such  goods  would  have 
been  sold,  it  is  very  obvious  that  his  answer 


would  have  been  relevant,  and  should  have 
been  received. 

The  other  questions  made  in  the  case,  so 
far  as  they  are  material,  would  not  be  likely 
to  arise  on  another  trial.  There  is  error,  and 
a  new  trial  is  granted.  The  other  judges  con- 
curred. 


246 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


LAWRENCE  et  al.  v.  PORTER  et  al. 

(11  C.  0.  A.  27,  63  Fed.  62,  aud  22  U.  S.  App. 
483.) 

Circuit  Court  of  Appeals,   Sixtli  Circuit.     May 
28,  1894. 

No.  122. 

In  error  to  the  circuit  court  of  the  United 
States  for  the  Western  district  of  Michigan. 

This  was  an  action  by  Ida  A.  Lawrence 
and  Frank  Lawrence,  administrators  of  the 
estate  of  Lorenzo  J.  Bovee,  deceased,  against 
William  T.  Porter,  Charles  L.  Ames,  and 
Abel  H.  Frost.  At  the  trial  the  court  di- 
rected the  jury  to  find  for  defendants.  Judg- 
ment for  defendants  was  entered  on  the  ver- 
dict.    Plaintiffs  brought  error. 

Bundy  &  Travis,  for  plaintiffs  in  error. 
Walpole  Wood  and  Taggart,  Knappen  tfc 
Denisou,  for  defendants  in  error. 

Before  TAFT  and  LURTON,  Circuit 
Judges. 

LURTON,  Circuit  Judge.  This  is  an  action 
for  breach  of  a  contract  of  sale  brought  by 
the  buyers  against  the  sellers  for  failure  to 
deliver  a  large  quantity  of  lumber  according 
to  the  terms  of  the  agreement.  The  lum- 
ber was  to  be  delivered  by  the  defendants 
at  their  mill,  on  vessels  to  be  furnished  by 
the  plaintiffs,  during  the  shipping  season  of 
1810.  As  each  cargo  was  received,  the  buy- 
er was  to  give  acceptances,  payable  in  90 
days.  After  the  delivery  of  one  cargo,  the 
defendants  refused,  for  no  sufficient  reason, 
to  deliver  the  remainder  upon  the  terms  of 
the  bargain,  but  offered  to  supply  the  lum- 
ber needed  to  complete  the  bill  at  a  reduc- 
tion of  50  cents  on  each  1,000  feet,  for  cash 
on  delivery  over  the  rail  of  plaintiffs'  vessels 
and  at  the  time  when  delivery  was  required 
by  the  broken  agreement.  The  buyers  stood 
upon  their  contract,  and  demanded  delivery 
upon  the  credit  therein  stipulated,  and  re- 
fused to  take  the  lumber  offered  by  the  de-. 
linquent  sellers  on  any  other  terms  than 
those  contained  in  the  agreement.  There 
was  evidence  tending  to  show  that  the  quan- 
tity and  quality  of  lumber  contracted  for, 
and  of  the  dimensions  designated,  could  not 
be  procured  at  the  place  of  delivery  from 
others  than  the  defendants,  or  at  any  other 
available  market  in  time  for  shipment  ac- 
cording to  the  terms  of  the  contract;  that 
the  lumber  was  intended  for  resale  at  Tona- 
wanda,  N.  Y.;  that  defendants  were  so  in- 
formed; and  that  the  market  value  of  such 
lumber  at  Tonawanda,  after  deducting 
freight  and  hauling,  was  considerably  above 
the  contract  price. 

The  evidence  of  the  plaintiffs  established 
that  the  defendants  were  able  to  comply  with 
their  proposal  to  deliver  the  lumber  required 
by  the  agreement  during  the  period  fixed 
for  delivery  in  the  agreement.  This  makes 
it  unnecessary  to  consider  the  plaintiffs'  as- 


signment of  error  to  the  ruling  of  the  court 
that  the  burden  of  proof  was  .on  the  plain- 
tiffs to  show  that  defendants  could  not  have 
complied  with  their  offer  to  fill  out  the  bill 
for  cash  at  a  reduced  price.  There  was  a 
jury  and  verdict  for  the  defendants  in  com- 
pliance with  a  charge  to  that  eft'ect. 

The  case  must  turn  upon  the  error  assign- 
ed upon  the  charge  of  the  court,  the  other 
errors  assigned  being  immaterial.  The  view 
of  the  circuit  court  upon  the  question  of  law 
upon  which  this  case  in  its  present  attitude 
must  turn,  as  expressed  in  the  rulings  and 
charge,  is  well  summarized  in  the  concluding 
paragraph  taken  from  the  charge:  "In  this 
case  the  court  is  of  the  opinion  that  upon 
the  case  made  by  the  plaintiff,  although  he 
has  established  a  breach  of  contract,  yet  the 
evidence  shows  that  the  defendants  offered 
to  furnish  the  identical  articles  contracted 
for  at  a  price  not  greater  than  the  contract 
price,  and  so  no  legal  damage  has  resulted 
to  the  plaintiff  in  consequence  of  the  breach 
of  the  contract,  and  for  that  reason  the  plain- 
tiff is  not  entitled  to  recover.  This  being 
the  judgment  of  the  court,  as  a  matter  of 
law  upon  the  facts,  as  the  plaintiff  claims 
them  to  be,  there  remains  only  the  duty  of 
rendering  a  verdict  for  the  defendants." 

The  general  rule  is  that,  for  a  breach  of 
contract  to  deliver  goods  under  an  execu- 
tory contract  of  sale,  the  measure  of  re- 
covery is  the  dift'erence  between  the  con- 
tract price  and  the  market  value  at  the  place 
of  delivery  at  the  time  the  contract  was. 
broken.  If  the  goods  cannot  be  procured  at 
the  place  of  delivery,  then  resort  must  be 
had  to  tlie  nearest  available  market.  Tower 
Co.  V.  Phillips.  23  Wall.  471.  The  'daiuage 
thus  measured  is  the  ordinary  and  usual  dam- 
age incident  to  such  a  breach,  and  is  re- 
coverable under  a  declaration  which  simply 
sets  out  the  contract  and  the  breach.  Plain- 
tiffs' declaration  contains  the  usual  common- 
law  counts.  Under  the  practice  in  Michigan, 
the  defendants  demanded  from  the  plaintiff's 
a  bill  of  particulars,  setting  out  the  particvdar 
damages  they  had  sustained.  The  bill  was 
delivered,  but  it  did  not  show  any  damages 
other  than  the  general  damages  recoverable 
under  a  general  count. 

It  is  true  that  a  plaintiff  is  not  always 
limited  to  the  recovery  of  general  damages. 
There  may  be  such  special  circumstances  as- 
will  entitle  him  to  recover  special  damages, 
"which  are  such  as  are  a  natural  aud  proxi- 
mate consequence  of  the  breach,  although 
not  in  general  following  as  its  immediate  ef- 
fects." But,  if  the  plaintiff  has  sustained 
other  damages  than  those  which  usually  flow 
from  an  ordinary  breach  of  such  a  contract, 
he  must  in  his  pleading  particularize  his 
special  loss,  so  that  the  defendant  may  pre- 
pare himself  with  evidence  to  meet  such  un- 
usual claim.  Benj.  Sales,  §  870;  Parsons 
V.  Sutton,  6G  N.  Y.  90;  Barrow  v.  Aruaud, 
8  Q.  B.  604.  Neither  the  declaration  nor 
the  bill  of  particulars  sets  out  or  particular- 


BREACH  OF  AGREEMENT  TO  SUPrLY  GOODS. 


247 


izes  auy  special  damages  sustained  by  plain- 
tiffs. They  are  therefore  limited  to  "gen- 
eral damages,"  which,  tor  sucli  a  breach  as 
the  one  declared  on,  are  measured  by  the 
difference  between  what  they  had  agreed 
to  pay  and  the  sum  for  wliich  they  could 
have  supplied  themselves  with  lumber  of  the 
same  character  at  the  place  of  delivery,  or, 
if  not  obtainable  there,  then  at  the  nearest 
available  market,  plus  any  additional  freight 
resulting  from  the  breach.  In  case  of  such 
breach,  the  plaintiffs  are  entitled  only  to 
indemnity  in  a  sum  equal  to  the  loss  they 
have  sustained  as  a  consequence.  Hence  it 
results  that  if  the  plaintiffs  are  able  to  re- 
place the  goods  by  others,  bought  at  a  less 
or  equal  price  at  the  place  of  deliverv.  or 
other  near  and  available  market,  they  have 
sustained  no  loss,  and  are  entitled  at  best 
to  nothing  more  than  nominal  damages. 
Xeitlier  the  declaration  nor  bill  of  particul- 
ars alleges  au3'  inability  to  pay  cash,  as  de- 
manded by  the  defendants.  We  do  not, 
therefore,  consider  whether  special  damages 
might  not,  under  some  circumstances,  be  re- 
covered, which  were  sustained  by  reason  of 
the  inability  of  plaintiffs  to  pay  cash  for  lum- 
ber to  replace  that  which  defendants  had 
contracted  to  sell  them  on  credit.  It  fol- 
lows that  if  plaintiff's  were  able  to  buy,  and 
did  not,  they  cannot  thi*ow  upon  the  defend- 
ants any  special  losses  incident  to  their  own 
failure  to  mitigate  the  injury  as  far  as  they 
reasonably  could.  Sedg.  Meas.  Dam.  (8th 
Ed.)  §  741;  Marsh  v.  Mcrherson,  105  U.  S. 
709;   Warren  v.  KStoddart,  Id.  224. 

The  ground  upon  which  the  defendants  re- 
fused to  carry  out  the  sale  was  ostensibly 
their  unwillingness  to  extend  to  the  plain- 
tiffs the  credit  of  90  days  provided  for  in 
the  agreement  of  sale.  They  have  not  en- 
deavored to  show  that  there  were  any  cir- 
cumstances which  justified  this  breach  of 
the  agreement.  Credit  is  often  a  material 
element  in  a  contract  of  sale,  whereby  the 
buyer  is  enabled  to  operate  upon  the  cap- 
ital of  the  seller.  Credit  extended  without 
interest  is,  in  effect,  a  sale  at  the  stipulated 
price  less  the  interest  for  the  period  of  credit. 
The  damage  for  a  breach  of  contract  to  pay 
money  at  a  particular  date  is  the  lawful  rate 
of  interest  for  the  period  of  default,  unless 
some  other  penalty  is  imposed  by  the  agree- 
ment. So  it  would  seem  that  if  the  buyer, 
in  order  to  supply  himself  with  the  articles 
which  the  seller  was  obligated  to  sell,  is 
compelled  to  buy  from  another,  and  to  pay 
cash,  one  element  of  recovery  for  the  breach 
would  be  interest  upon  his  purchase  for  the 
period  of  credit.  It  is  the  well-settled  duty 
of  the  buyer,  when  the  seller  refuses  to  de- 
liver the  goods  contracted  for,  to  do  nothing 
to  aggravate  his  injury.  Indeed,  he  must 
do  all  that  he  reasonably  can  to  mitigate 
the  loss.  If  the  buyer  could  have  supplied 
himself  with  goods  of  hke  kind,  at  the  place 
of  delivery  or  other  available  market,  at  the 
time  the  contract  was  broken,  and  neglected 


to  do  so,  Avhereby  he  suffered  special  dam- 
ages by  reason  of  the  breach,  he  will  nut 
be  suft'ered  to  recompense  himself  for  such 
special  damage,  for  the  reason  that  to  that 
extent  he  has  needlessly  aggravated  the  loss. 
The  contention  of  the  plaintiffs  is  that  they 
could  not  supply  themselves  at  the  time  the 
contract  was  broken  with  lumber  of  the  qual- 
ities and  sizes  mentioned  in  their  contract, 
either  at  the  place  of  delivery  or  at  any  other 
available  market;  that  they  were  not  re- 
quired to  buy  from  the  defendants,  who 
were  already  in  default;  that  to  have  bought 
from  them  would  operate  both  to  encourage 
breacjies  of  contracts,  and  would  have  been 
a  waiver  of  all  other  right  of  recovery  for 
the  breach  of  their  agreement;  that  to  have 
accepted  the  proposal  of  the  defendants  to 
supply  them  for  cash  at  the  reduced  prit-e 
would  simply  have  been  to  substitute  one 
contract  for  another,  thereby  enabling  de- 
fendants to  escape  all  liability  for  a  delib- 
erate and  indefensible  violation  of  the  bar- 
gain. They  therefore  insist  that  the  meas- 
ure of  damage  w-as  the  difference  between 
the  contract  price  and  the  market  value  at 
Tonawanda,  N.  Y.,  less  freights  to  that  point; 
the  evidence  showing  that  tlie  lumber  w:is 
bought  for  resale  at  Tonawanda,  and  that 
defendants  were  informed  of  that  purpose. 

For  a  breach  of  contract  of  sale,  the  law 
imposes  no  damages  by  way  of  punishment. 
The  innocent  party  is  simply  entitled  to  re- 
cover his  real  loss.  If  the  market  value  is 
less  than  the  contract  price,  the  buyer  has 
sustained  no  loss.  This  is  axiomatic,  and 
needs  no  citation  of  authority.  If  the  plain- 
tiffs could  have  bought- at  East  Jordan,  or 
at  any  other  convenient  and  available  mar- 
ket, at  the  time  of  the  breach,  lumber  of 
like  kinds,  at  the  same  price  or  a  less  price, 
it  would  be  clear  that  they  would  have  sus- 
tained no  general  damages.  If  they  refused 
to  avail  themselves  of  such  opportunity,  and- 
thereby  sustained  special  and  unusual  loss, 
by  reason  of  not  having  lumber  of  the  kinds 
called  for  by  the  contract,  or  by  being  de- 
prived of  a  profit  resulting  from  a  resale  at 
Tonawanda,  they  could  not  recover  such 
special  damage,  for  such  damage  might  have 
been  avoided  by  replacing  the  undelivered 
lumber  by  other  of  like  kinds.  The  fact 
that  they  could  only  buy  from  the  defend- 
ants does  not  affect  the  duty  of  plaintiffs 
to  minimize  their  loss  as  far  as  they  reason- 
ably could.  The  offer  to  sell  for  cash  at  a. 
reduced  price  more  than  equalized  the  in- 
terest for  90  days,  which  was  the  value  of 
credit.  There  seems  to  be  no  insurmount- 
able objection  in  thus  permitting  a  delin- 
quent contractor  to  minimize  his  loss.  The 
obligation  on  the  buyer  to  mitigate  his  loss, 
by  reason  of  the  seller's  refusal  to  carry  out 
such  a  sale,  is  not  relaxed  because  the  de- 
linquent seller  affords  the  only  opportunity 
for  such  reduction  of  the  buyer's  damage. 
Warren  v.  Stoddart,  105  U.  S.  224;  Deere 
V.  Lewis,  51  111.  254. 


248 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


In  Warren  v.  Stoddart,  above  cited,  the 
essential  facts  were  these:  Stoddart  &  Co. 
were  publishers  of  an  edition  of  the  En- 
cyelopcvdia  Britaunica.  It  was  a  book  sold 
only  by  subscription.  Certain  territory  was 
assigned  to  the  plaintiff,  in  which  he  was 
to  have  the  exclusive  right  to  sell  the  book 
on  subscription.  He  was  to  have  the  book 
on  a  credit  of  30  days,  thus  enabling  him  to 
deliver  it  to  his  subscribers,  and  obtain  the 
means  to  make  his  own  payments.  Warren 
obtained  a  large  number  of  subscriptions  to 
Stoddart's  publication.  After  delivering  a 
few  numbers,  he  ceased  to  canvass  for  the 
Stoddart  publication,  and  became  a  can- 
vasser for  a  rival  edition.  Thereupon  Stod- 
dart refused  to  extend  further  credit  to 
Warren,  and  demanded  cash  on  all  his  or- 
ders to  supply  his  subscribers  for  the  Stod- 
dart edition.  Warren  demanded  credit,  and 
refused  to  pay  cash.  Being  unable  to  get 
the  Stoddart  edition  from  any  other  source, 
he,  at  great  expense  to  himself,  substituted 
the  Scotch,  or  rival  edition,  with  which  he 
furnished  his  subscribers  for  Stoddart's  edi- 
tion. For  the  loss  thus  sustained  he  sued. 
After  discussing  the  effect  upon  Warren's 
contract,  because  of  his  ceasing  to  canvass 
for  Stoddart  and  taking  up  a  rival  work,  the 
court  proceeded  to  decide  the  case  upon  the 
second  ground  of  defense  presented,  saying: 
"But,  even  conceding  that  the  provision  re- 
ferred to  remained  in  force  after  Warren 
had  declined  to  go  on  under  the  contract,  it 
does  not  follow  that,  upon  the  refusal  of 
Stoddart  to  give  Warren  a  credit  of  thirty 
days  upon  the  books,  the  latter  could  obtain 
a  cancellation  of  t^ie  orders  he  had  taken 
for  Stoddart's  reprint,  and  substitute  orders 
for  the  Scotch  edition,  and  charge  the  ex- 
pense of  so  doing  to  Stoddart.  The  claim 
that,  upon  a  simple  refusal  of  Stoddart  to 
allow  him  a  thirty-days  credit  upon  the  books 
as  he  ordered  them,  he  could  go  on  and  sub- 
stitute other  orders  for  another  book,  and 
charge  Stoddart  with  the  expense  of  substi- 
tution, amounting  to  $30,000,  is,  to  say  the 
least,  a  remarkable  one.  The  damage  sus- 
tained by  Warren  because  he  did  not  get  the 
thirty-days  credit  which  he  thinks  he  was 
entitled  to  is  not  to  be  measured  in  that 
way.  The  rule  is  that  where  a  party  is 
entitled  to  the  benefit  of  a  contract,  and 
can  save  himself  from  a  loss  arising  from 
a  breach  of  it  at  a  trifling  expense  or  with 
^reasonable  exertions,  it  is  his  duty  to  do  it, 
and  he  can  charge  the  delinquent  with  such 
damages  only  as  with  reasonable  endeavors 
and  expense  he  could  not  prevent.  Wicker 
V.  Hoppock,  6  Wall.  94;  Miller  v.  Mariner's 
Church,  7  Me.  51;  Russell  v.  Butterfleld,  21 
Wend.  300;  U.  S.  v.  Buruham,  1  Mason,  57, 
Fed.  Cas.  No.  14,090;  Taylor  v.  Read,  4 
Paige,  561.  The  course  pursued  by  Warren 
was  not  necessary  to  his  own  protection. 
He  might  have  paid  Stoddart  cash  for  the 
books  required  to  fill  his  orders,  or  have  al- 
lowed Stoddart  to  fill  the  orders  and  divide 


the  profits  of  the  business  between  them, 
on  equitable  terms.  The  law  required  him 
to  take  that  course  by  which  he  could  se- 
cure himself  with  the  least  damage  to  the 
defendant  in  error.  Instead  of  this,  he  un- 
necessarily destroys  a  valuable  interest  of 
Stoddart  in  the  business  in  which  they  were 
jointly  engaged,  and  then  seeks  to  charge 
him  with  the  great  expense  and  damage 
which  he  brought  on  himself  in  so  doing. 
If  Stoddart  violated  his  contract  with  War- 
ren in  refusing  to  fill  his  orders  except  for 
cash,  the  measure  of  Warren's  damages 
would  be  the  interest  for  thirtj^  days  on  the 
amount  of  cash  paid  on  his  orders.  As 
ro  proof  was  given  to  show  that  Warren 
had  ever  paid  cash  for  any  books  ordered 
by  him,  he  woidd  only  be  entitled,  in  any 
view  of  the  case,  to  nominal  damages." 

The  opinion  in  Warren  v.  Stoddart  rests  u]>- 
on  the  theory  that  the  buyer  does  not  surren- 
der or  yield  any  right  of  action  he  may  have 
for  the  breach  of  contract.  It  rests  wholly 
upon  the  duty  of  mitigating  the  loss  by  repla- 
cing the  goods  by  others,  if  they  are  obtainable 
by  reasonable  exertion.  If  this  duty  be  such 
as  to  require  him  to  buy  from  the  delinquent 
seller;  if  the  article  can  be  obtained  only  from 
him,  or  because  he  offers  it  cheaper  than 
it  can  be  obtained  from  others,  such  a  pur- 
chase from  the  seller  is  not  the  abandon- 
ment of  the  original  contract  by  the  substitu- 
tion of  another,  nor  would  the  purchase 
operate  to  the  seller's  advantage,  save  in 
so  far  as  the  damage  resulting  from  his  bad 
faith  was  thereby  reduced.  If  the  seller  of- 
fers to  sell  for  cash  at  a  reduced  price,  or 
to  sell  for  a  less  price  than  the  market  price, 
though  in  excess  of  the  contract  price,  with 
the  condition  that  it  should  operate  as  a 
waiver  of  the  original  contract,  or  of  any 
right  of  action  for  its  breach,  then  the  buy- 
er would  not  be  obligated  to  treat  with  the 
seller,  nor  would  the  seller's  offer,  if  re- 
jected, operate  as  a  reduction  of  damages. 

The  case  of  Deere  v.  Lewis,  cited  above, 
was  a  case  much  like  the  one  under  consid- 
eration. The  goods  could  be  procured  only 
from  the  defendant,  who  offered  the  goods 
for  cash  at  5  per  cent,  less  than  the  contract 
price.  It  was  held  that  plaintiff'  could  re- 
cover only  nominal  damages,  inasmuch  as 
he  could  have  bought  the  goods  for  less 
than  the  contract  price  from  the  delinquent 
seller. 

The  cases  of  Ilavemyer  v.  Cur^ningham, 
35  Barb.  515,  and  Manufacturing  Co.  v. 
Randall  (Iowa)  17  N.  W.  507,  have  been  cited 
as  sustaining  a  different  result.  The  first  case 
rested  upon  a  state  of  facts  very  unlike 
those  here  involved.  The  other  seems  to 
have  gone  off'  upon  the  apprehension  that, 
if  the  buyer  supplied  himself  by  a  purchase 
from  the  delinquent  seller,  he  thereby  aban- 
doned his  contract,  and  substituted  a  new- 
agreement  in  place  of  the  broken  bargain. 
That  apprehension  seems  unjustified.  But, 
however  that  may  be,  the  case  of  Warren 


BREACH  OF  AGREEMENT  TO  SUrPLY  GOODS. 


249 


V.  Stoddart  is  coutrolling.  The  offer  after 
the  breach  by  the  defendants  to  sell  the 
lumber  necessary  to  complete  the  contract 
was  not  coupled  with  any  condition  operat- 
ing as  an  abandonment  of  the  contract,  nor 
as  a  waiver  of  any  right  of  action  for  dam- 
ages for  the  breach. 


The  question  as  to  whether  there  was  er- 
ror in  not  directing  a  verdict  for  nominal 
damages  was  not  presented  by  any  excep- 
tion in  the  circuit  court,  nor  raised  by  any 
assignment  of  error  here.  We  do  not,  there- 
fore, consider  it. 

Judgment  affirmed. 


250 


BREACH  OF  CONTRACTS  RESFECTIXG  PERSONAL  PROPERTY. 


HOFFMAN  V.  CHAMBERLAIN. 

(5  Atl.  150,  40  N.  J,  Eq.  663.) 

Court  of  Errors  and  Appeals  of  New  Jersey. 
November  Term,  1885. 

On  appeal  from  a  decree  of  the  clianeelltir, 
whose  opinion  is  reported  in  Chamberlain  v. 
Hoffman,  38  N.  J.  Eq,  40. 

P.  S.  Scovel,  for  appellant. 
C.  A.  Bergen,  for  respondent. 

REED,  J.  Sarah  Chamberlain,  the  com- 
plainant below,  together  with  one  Amelia  B. 
Ellis,  sold  to  Marj'  W.  Miller,  now  Hoffman, 
certain  household  furniture  for  the  sum  of 
§1,800.  A  part  of  the  property  sold  belonged 
to  Mrs.  Chamberlain,  and  a  part  to  Mrs.  El- 
lis. It  was  paid  for  in  the  following  manner: 
$500  in  cash  were  paid  to  Mrs.  Ellis,  and  to 
her  were  given,  also,  two  notes  of  $150  each, 
and  one  note  of  $100;  to  Mrs.  Chamberlain 
were  given  nine  $100  notes.  All  of  Mrs.  El- 
lis' notes  are  paid.  Three  of  the  Chamber- 
lain notes  are  paid,  leaving  still  unpaid  six 
of  the  notes  given  to  her.  At  the  time  these 
notes  were  given  a  chattel  mortgage  was  exe- 
cuted to  Mrs.  Chamberlain,  to  secure  all 
these  notes,  to  the  amount  of  $1,300.  Mrs. 
Chamberlain  filed  her  bill  to  foreclose  this 
mortgage.  The  defense  to  it  is  that  some  of 
the  articles  sold  did  not  belong  to  either  Mrs. 
Ellis  or  Mrs.  Chamberlain.  All  the  articles 
to  which  title  is  alleged  to  have  failed  were 
sold  as  the  propertj^  of  Mrs.  Ellis,  and  all 
the  notes  given  to  her  have  been  paid.  Only 
the  remaining  six  notes  given  to  Mrs.  Cham- 
berlain are  outstanding,  and  if  is  as  secunty 
for  the  payment  of  these  that  the  chattel 
mortgage  is  being  foreclosed.  If  this  trans- 
action is  to  be  ti'eated  as  involving  two  sales, 
with  a  distinct  consideration  for  each,  then 
there  is  no  defense  to  the  present  suit. 

The  failure  of  title  to  Mrs.  Ellis'  goods 
could  not  affect  the  consideration  paid  to 
Mrs.  Chamberlain  under  a  distinct  contract. 
Upon  a  consideration  of  all  the  circumstan- 
ces surrounding  the  sale,  I  think  the  affair 
was  understood  to  be  a  single  transaction,  in 
which  all  these  household  goods  were  sold 
for  a  single  price.  The  two  ladies  who  sold 
were  relatives,  and  had  been  intimately  con- 
nected in  business.  They  desired  to  sell  all 
the  furniture  in  the  house  to  one  person. 
The  values  which  they  fixed  to  the  separate 
articles  were  for  the  purpose  of  determining 
their  separate  interests  in  the  consideration. 
The  notes  were  made  in  part  to  one  and  in 
part  to  the  other  vendor,  for  the  purpose  of 
convenience.  The  chattel  mortgage  was  giv- 
en to  secure  all  the  notes,  without  regard  to 
whom  they  were  payable.  So  far  as  the  pur- 
chaser felt  concerned  in  the  affair,  all  she 
wished  was  to  get  all  the  furniture  as  it 
stood  in  the  house.  She  was  not  concerned 
in  the  proportion  of  interest  in  the  entire 
stock,  so  long  as  she  got  the  title  to  it  all. 
The  price  was  agreed  upon,  not  in  view  of 
any  part,  but  of  the  whole  lot.     The  consid- 


eration was  single,  in  which  both  vendors 
were  jointly  concerned,  and  both  vendore 
were  equally  responsible  for  any  defect  in 
the  title  to  the  goods  sold  for  which  this  con- 
sideration passed. 

In  what  articles  was  there  a  failure  of 
title?  It  is  claimed  that  title  failed  to  a  por- 
tion of  the  goods  which  Mrs.  Ellis  had 
bought  of  a  Mr.  Hutchins,  and  which  Mr. 
Hutchins  recovered  of  Mrs.  Chamberlain  by 
an  action  of  I'eplevin.  It  appears,  however, 
that  the  replevin  suit  against  Mrs.  Chamber- 
lain was  undefended;  no  notice  having  been 
given  to  Mrs.  Ellis  or  Mrs.  Hoffman  of  the 
pendency  of  the  action.  Nor  does  the  evi- 
dence in  this  cause  show  that  Mrs.  Ellis  had 
no  title  to  those  articles.  I  think  that  she 
had,  and  that  the  transaction  by  which  she 
got  possession  of  the  articles  was  a  sale,  and 
not  a  bailment;  and,  although  she  had  not 
paid  for  them,  she  could  and  did  pass  a  title 
to  Mrs.  Chambei'lain  upon  which  she  could" 
have  successfully  stood  in  a  defense  to  the 
replevin  suit.  The  remaining  articles  in 
which  there  was  an  alleged  failure  of  title 
were  the  three  Baltimore  heaters.  As  to 
these,  it  appears  that  they  belonged  to  the 
landlord  of  Mrs.  Ellis.  Although  she  put  one 
in  the  rented  premises,  the  arrangement  by 
which  this  was  done  contemplated  that  it 
should  remain  there  after  the  termination  of 
her  leastr.  The  other  two  were  placed  in  the 
house  by  the  landlord.  In  respect  to  these 
heaters,  neither  of  the  vendors  to  Mrs.  Cham- 
berlain had  title,  and  there  should  be  a  de- 
duction from  the  amount  due  upon  the  six 
outstanding  notes  for  this  failure  of  title. 

The  question  then  arises,  what  is  the  prop- 
er measure  of  the  deduction  to  be  allowed? 
Perhaps  no  feature  relating  to  the  sale  of 
chattels  has  been  so  little  and  so  unsatisfac- 
torily discussed  and  determined  in  previous 
adjudications  as  this.  It  seems  to  be  the 
s^tled  doctrine  in  the  English  courts  that, 
where  there  is  a  failure  of  title  to  all  the 
chattels  sold,  the  pui-chaser  can  treat  the 
transaction  as  presenting  an  instance  of  an 
entire  failure  of  consideration,  and  may  sue 
for  the  money  paid.  Eichholz  v.  Bannister, 
17  C.  B.  (N.  S.)  70S.  There  is,  hoAvever,  no 
case  decided  in  their  courts  that  holds  that 
the  right  of  a  purchaser  is  limited  to  a  recov- 
ery of  this  sum  in  an  action  brought,  not  for 
the  money  paid,  but  for  a  breach  of  the  war- 
rants' of  title.  The  rule  is  entirely  settled 
that  for  a  breach  of  a  covenant  for  title  to 
real  property  the  measure  of  danin<4es  is  tlie 
consideration  paid,  and  the  interest  upon 
such  sum.  This  rule,  early  settled  in  the 
English  courts,  is  the  rule  in  this  and  many 
other  states.  This  rule  has  also  been  adopted 
in  many  states  in  this  country  as  equally  ap- 
plicable to  breaches  of  the  warranty  of  title 
to  personal  propeiiy.  The  following  cases 
display  the  extent  to  which  this  rule  has  here 
been  adopted:  Noel  v.  Wheatly,  30  Miss. 
181;  Ware  v.  Weathnall,  2  McCord,  413; 
Wood  V.  Wood,  1  Mete.  (Ky.)  512;    Crittenden 


BREACH  OF  AGREEMENT  TO  SUrrLY  GOODS. 


251 


r.  Posey,  1  Head,  311;  Ellis  v.  Gosney,  7  J.  J. 
Marsh.  Ill;  Arthur  v.  J^Ioss,  1  Or.  19o;  Goss 
V.  Dysant,  31  Tex.  ISG. 

A  perusal  of  the  opinions -in  those  cases, 
and  the  reasons  given  for  the  adoption  of  this 
rule  in  the  sale  of  chattels,  is  not  calculated 
to  vindicate  the  wisdom  of  the  rule.  The 
doctrine,  so  far  as  it  is  applicable  to  breaches 
of  the  covenants  in  real  conveyances,  rests 
upon  grounds  which  appertain  to  the  charac- 
ter of  real  estate.  The  reason  for  the  adop- 
tion of  this  rule  in  this  cln&s  of  actions  is  set 
forth  at  length  by  Kent,  in  the  leading  case 
of  Staats  V.  Ten  Eyck,  3  Gaines,  Gas.  111. 
The  rule  is  an  exception  to  the  general  prin- 
ciple which  underlies  the  measure  of  dam- 
ages for  breaches  of  contract;  namely,  the 
standard  of  compensation.  This  latter  rule 
applies  to  actions  for  breaches  of  wan-anties 
of  quality  in  the  sale  of  chattels  to  its  full 
extent.  In  what  respect  the  loss  resulting 
from  a  breach  of  the  warranty  of  title  differs 
from  that  resulting  from  a  breach  of  the  war- 
ranty of  quality  in  dealing  with  personal 
property  is  difficult  to  conceive.  Outside  of 
the  vice  of  extending  an  exception  to  a  gen- 
eral i-ule  in  any  event,  there  appears  to  be 
no  reason  why  the  rule  of  recovery  should 
not  be  uniform  in  actions  upon  both  kinds 
of  warranties.  Nor  do  the  cases  in  which 
the  exceptional  rule  applicable  to  damages 
for  breaches  of  real  covenants  has  been  ex- 
tended to  warranties  of  title  to  chattels,  in 
my  judgment,  present  any  reason  for  such 
prejudicial  action.  In  nearly  all  of  these 
cases  the  question  arose  in  states  when  and 
where  slavery  prevailed,  and  was  in  respect 
to  breaches  of  a  warranty  of  title  to  slaves. 
The  reason  stated  in  many  of  the  cases  for 
the  adoption  of  the  rule  was  the  precarious 
and  'fluctuating  character  of  that  kind  of 
property.  In  other  cases  the  court  is  con- 
tent with  the  citation  of  the  early  case  of 
Armstrong  v.  Percy,  5  Wend.  53G,  as  the  au- 
thority for  the  rule. 

In  regard  to  the  latter  case,  it  may  be  re- 
mai'ked  that  the  rule  is  drawn  from  a  remark 
of  the  judge  who  delivered  the  opinion  in 
that  case,  in  a  single  sentence,  unsupported 
by  authoi'ity  or  reason.  And  this  remark 
was  made  in  the  face  of  the  result  in  the  pre- 
vious case  of  Blasdale  v.  Babcock,  1  Johns. 
517,  in  which  there  was  a  recoveiT  of  the 
value  of  a  horse,  and  costs,  upon  a  warranty 
of  title.  The  matter  actually  decided  in  the 
case  of  Armstrong  v.  Percy  was  that,  where 
an  action  had  been  brought  against  the  pur- 
chaser by  the  real  owner,  who  was  not  the 
vendor,  the  purchaser  could  recover  from  the 


vendor  the  money  paid,  besides  the  costs  of 
the  suit  Avhich  he  was  obliged  to  defend. 
There  Avas  no  suggestion  that  the  rule  con- 
trolling, in  this  respect,  an  action  for  broach 
of  this  kind  of  warranty,  differed  from  the 
rule  in  actions  upon  other  kinds  of  warran- 
ties. The  cases  cited— namely,  Curtis  v.  Han- 
nay,  3  Esp.  82;  Caswell  v.  Coare,  1  Taunt. 
5G6;  Lewis  v.  Peake,  7  Taunt.  153— were  all 
actions  for  breach  of  warranty  of  quality, 
and  the  measure  of  damages  in  these  cases 
was  shown  to  have  been  dependent  upon  the 
pleadings.  In  the  first  two  of  these  cases  no 
special  damages  were  set  out  in  the  declara- 
tion, and  there  was  nothing  but  the  amount 
of  the  consideration  to  show  what  was  lost, 
so  that  was  ruled  to  be  the  measure  of  dam- 
ages. In  the  last  case,  the  claim  for  dam- 
ages having  been  broader,  it  was  permitted 
to  the  plaintiff  to  recover,  in  addition  to  this, 
the  costs  of  a  suit  against  him  by  his  vendee, 
to  whom  he  had  sold  with  a  simihar  war- 
ranty. 

There  is  nothing  in  the  matters  decided  in 
the  case  of  Armstrong  v.  Percy  which  fixes, 
as  a  rule,  that  for  the  present  kind  of  war- 
ranties the  measure  of  damages  is  limited  to 
the  consideration  paid,  and  interest.  The 
rule,  I  think,  in  all  actions  of  this  kind,  is 
compensation.  Where  no  special  damages 
are  set  forth,  the  measure  of  the  loss  is  the 
value  of  the  property  purchased;  and,  where 
there  is  no  evidence  of  value  but  the  consid- 
eration paid,  that  will  be  taken  as  the  stand- 
ard of  value.  Where  there  is  a  failure  of 
title  to  a  part,  or  an  inferior  title  only  is  sold, 
the  loss  is  the  difference  between  the  prop- 
erty as  conveyed  and  its  value  had  the  title 
been  as  warranted. 

In  support  of  the  view  that  this  general 
rule,  applicable  to  damages,  appertains  to  ac- 
tions upon  breaches  of  warranties  of  title  to 
chattels,  are  the  cases  of  Grose  v.  Hennes- 
sey, 13  Allen,  389;  Rowland  v.  Sheltou,  25 
Ala.  217;  and  the  text  of  Mr.  Sedgwick,  on 
Measure  of  Damages,  294.  My  opinion  is 
that  there  should  be  a  deduction,  in  this  case, 
of  the  difference  between  the  value  of  the 
entire  lot  of  chattels  sold  and  the  value  of 
the  lot  without  the  heaters.  The  only  evi- 
dence of  the  value  of  the  entire  lot  is  Avhat 
it  was  sold  for,  namely,  $1,800.  The  evidence 
in  regard  to  the  value  of  the  heaters  fixes 
their  value  at  about  $200.  Adopting  these 
values,  there  should  be  a  deduction  for  the 
latter  sum  from  the  notes,  as  of  the  date  of 
the  sale,  leaving  due  $400  and  interest. 

The  decree  should  be  reversed. 

Decree  unanimously  reversed. 


252 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


BERKEY  &  GAY  FURNITURE  CO.  v.  HAS- 
CALL. 

(24  N.  E.  336,  123  Ind.   502.) 

Supreme  Court  of  Indiana.    May  1,   1S90. 

Appeal  from  circuit  court, Elkhart  coun- 
ty; James  D.  Osborne,  Judge. 

Action  by  the  Berkey  &  Gay  Furniture 
Company  against  Milo  S.  Hascall.  Judg- 
ment was  rendered  for  defendant,  and 
plaintiff  appealed. 

J.  M.  ViinSeet,  W.  H.  Vesey,  and  C.  IV. 
;t/77/e/',  for  api)ellaiit.  H.  D.  Wilsou  and  11". 
J.  Duvia,  for  appellee. 

OLDS,  J.  This  was  an  action  by  the  ap- 
pellant against  the  appellee  to  recover  a 
balance  of  f  374.G2lorgoods  sold  and  deliv- 
ered. The  answer  is  in  three  paragraphs, 
setting  up  a  counter-claim.  It  is  alleged  in 
the  first  paragraph  that  on  August  26, 
1881,  the  appellee  had  just  completed  his 
hotel,  with  50  rooms,  and  was  in  need  of 
new  furniture  therefor,  M'ithout  which  he 
could  not  cari-y  on  his  business,  as  appel- 
lant well  knew;  that  on  said  day,  for  the 
purpose  of  furnishing  said  hotel  in  all  its 
parts  with  suitable  furniture,  the  appel- 
lant agreed  with  him  to  furnish  said  fur- 
niture and  every  part  thereof  complete, 
and  set  it  up  in  proper  shape  and  condition 
in  his  hotel  rooms,  ready  for  use,  by  Sep- 
tember 15,  ISSl ;  that  said  rooms  w^re  ir- 
regular and  different  in  size,  dimensions, 
and  construction,  and  for  the  purpose  of 
making  said  furniture  suitable  for  said 
rooms,  appellant  measured  said  rooms, 
and  a  list  of  goods  was  agreed  upon,  and 
at  the  foot  thereof  appellant  executed  a 
memorandum  in  writing  as  follows:  "We 
agree  to  putthese  goods  all  in  good  order, 
(set  up  in  hotel,  without  charge,  except 
freight  and  cartage,)  castored,  with  brack- 
et M'ood-wheels  on  all  beds.  All  bureaus  and 
washstands  to  have  good  wood-wheels 
on  rubber  castors.  Goods  to  be  ready  the 
15th  of  September.  Any  goods  not  accord- 
ing to  order,  or  not  satisfactory,  may  be 
returned  free  of  charge.  Goshen,  Aug.  26th, 
3881.  Beukey  &  Gay  Furmtiuse  Co.  T. 
M.  MosELEY."  The  paragraph  then  al- 
leges that  he  was  ready,  able,  and  willing 
to  comply  with  his  part  of  said  contract, 
but  that  appellant,  with  full  knowledge  of 
all  the  facts,  violated  said  agreement,  in 
this,  to-wit:  It  failed  to  deliver  any  of 
said  goods  prior  to  September  30,  1881, 
whereby  he  lost  the  daily  use  of  29  rooms, 
of  the  rental  value  of  $2  per  day  for  each 
room  from  September  15th  to  September 
3(tth  ;  that  appellant  failed  to  deliver  said 
goods  prior  to  January  18,  1SS2,  except  as 
set  forth  in  the  complaint;  that  said  fur- 
niture was  purchased  to  be  delivered  in 
sets  and  suitsforspecihcrcjoms  and  places, 
as  set  forth  in  said  foregoing  memoran- 
dum, butthe  articles  so  delivered  were  not 
in  sets  or  suits,  but  in  disjointed  and  mis- 
matched pieces,  and  were  not  and  could 
not  be  properly  set  up  or  used  until  all 
■were  delivered  ;  by  reason  of  which  he  lost 
the  daily  rental  value  and  use  of  20  of  said 
rooms,  worth  to  defendant  $2  each  per 
<lay  from  October  1,  ISSl,  to  January  18, 
]8S2,  inclusive;  that  because  of  such  failure 
he  was  compelled   to    turn  away,  and  did 


turn  away,  20  persons  each  day,  who  de- 
sired to  become  guests  at  said  hotel, 
whereby  the  income  and  profits  of  said 
hotel  business  were  diminished  $50  per 
day.  The  second  paragraph  of  the  coun- 
ter-claim alleges  that  on  the  26th  day  of 
August,  1881,  he  had  just  completed  his 
hotel,  at  a  cost  of  .flO.OOO;  that  it  con- 
tained 40  rooms  (besides  dining-room, 
kitchen,  etc.,)  suitable  for  the  entertain- 
ment of  guests;  that  it  was  then  operated 
and  run  by  liim  in  the  business  of  hotel- 
keeping,  and  was  so  operated  for  the  next 
two  years;  that  the  rental  value  of  said 
hotel,  when  furnished,  was  $5,500  per  year; 
that  on  said  26th  day  of  August,  1881,  he 
was  in  great  need  of  furniture  to  supply 
and  furnish  30  of  the  aforesaid  guest 
rooms  in  said  hotel,  which  rooms  were 
tlieu  unfurnished  and  empty,  in  which  con- 
dition they  were  of  no  rental  value  to  de- 
fendant, all  of  which  appellant  well  knew; 
that  to  supply  and  furnish  said  rooms  and 
hotel  as  aforesaid,  appellant  promi.sed  and 
agreed  with  him  to  deliver  and  set  up,  in 
good  order  and  condition,  the  furniture 
mentioned  in  its  complaint  by  thel5thday 
of  September,  ISSl,  according  to  written 
specifications  and  agreement,  (copied  into 
first  paragraph  above;)  that  appellant 
failed  and  refused  t<j  deliver  said  goods 
until  January  18,  1SS2,  during  which  time, 
from  September  15.  1S81,  to  January  18, 
1882,  he  was  deprived  of  the  use  and  i-ental 
value  of  said  hotel,  and  the  several  rooms 
therein,  which  use  and  rental  was  of  the 
value  of  .f  2,000.  The  third  paragraph  of 
the  counter-claim  alleges  all  the  matters 
contained  in  the  other  two  paragraphs, 
showing  a  little  more  minutelj'  the  rooms 
for  whicli  the  different  articles  of  furniture 
were  designed.  A  reply  in  general  denial 
was  filed  to  the  answer. 

The  cause  was  submitted  to  a  jury  for 
trial,  and  the  jury  returned  a  special  ver- 
dict in  the  words  and  figures  following: 
"Special  Verdict.  (1)  We,  the  jury,"  find 
that  the  plaintiff  contracted  Avith  the  de- 
fendant, on  the  26th  day  of  August,  1881, 
to  sell  and  deliver  to  defendant  the  several 
items  of  property  mentioned  in  plaintiff's 
complaint,  at  and  for  the  price  of  each  ar- 
ticle as  stated  in  iilaintiff's  complaint,  and 
Avas  to  deliver  the  same  and  set  the  same 
up  in  defendant's  liotel  in  Goshen,  Iml., 
and  haA^e  the  same  ready  for  use  in  defend- 
ant's hotel,  knoAA^n  as  'Hotel  Hascall,'  by 
or  on  the  15th  day  of  September,  1881; 
that  plaintiff,  at  the  time  of  making  such 
contract,  kncAV  the  purpose  for  which  said 
furniture  Avas  to  be  used.  (2)  Plaintiff 
failed  and  neglected  to  deliver  any  of  said 
furniture  until  the  30th  day  of  September, 
1881,  and  thereupon  and  thei'eafter,  until 
the  18th  day  of  January,  1882,  plaintiff  de- 
livered said  fui'niture  at  the  times,  and  in 
the  specific  articles,  as  scA'erally  set  forth 
by  the  plaintiff  in  the  complaint  herein. 
(3)  Defendant  paid  plaintiff  the  sums  cred- 
ited to  defendant  in  plaintiff's  complaint, 
and  returned  to  plaintiff  the  items  of  fur- 
niture, as  stated  in  plaintiff's  complaint, 
to  the  amount  of  .$121.85,  thus  leaving  un- 
paid of  the  purcliase  price  of  said  furniture 
the  sum  of  $374.62,  March,  1882,  as  stated 
by  the  plaintiff.  (4)  We  further  find  that 
defendant,  at  and  just  prior  to  the  mak- 
ing of  said   contract,   had   reconstructed 


BREACH  OF  AGREEMENT  TO  SUPPLY  GOODS. 


253 


aii.i  built  his  hotel  building  in  the  city  of 
Goshen,  lud..  at  a  cost  of  $40,000,  and  de- 
fendant was  proprietor  and  manager  there- 
of, and  had  within  said  hotel  thirty  (:'.()) 
rooms  that  were  unfurnished,  and  wlien 
so  unfurnished  were  of  no  use  or  value  to 
the  defendant;  that  all  said  rooms  remained 
vacant,  and  of  no  use  or  value  to  de- 
fendant, from  the  15th  day  of  September, 
ISSl,  to  tlie  30th  day  of  September,  1881, 
on  account  and  by  reason  of  the  failui-e  of 
plaintiff  to  comply  with  its  agreement 
aforesaid;  that  twenty-three  (23)  of  said 
rooms  remained  vacant,  and  of  no  use  to 
defendant,  from  the  30th  day  of  Septem- 
ber, iSSl,  until  the  19th  day  of  October, 
1881,  because  of  the  failure  of  plaintiff  to 
comply  with  said  contract;  that  seven  (7) 
of  said  rooms  remained  vacant  and  of  no 
use  from  the  I'Jth  day  of  October,  1881,  to 
the  ijth  day  of  November,  1881,  because  of 
the  failure  of  plaintiff  to  comply  with  said 
contract;  thatfrom  the  5th  day  of  Novem- 
ber, 1S81.  until  December  15,  1881,  six  (G) 
rooms  of  said  hotel  remained  vacant,  and 
of  no  use  to  defendant,  because  of  the  non- 
fultillnieutof  said  contract  by  the  plaintiff; 
that  the  use  of  each  one  of  said  rooms  to 
the  defendant  was  nothina,  when  unfur- 
nished. (5)  We  furtiier  find  that  the  rent- 
al value  and  use  of  each  of  said  rooms, 
when  furnished  with  the  furniture  desig- 
nated for  same  in  said  contract,  would 
have  been  to  the  defendant  75-100  dollars 
per  day  during- said  time.  (6)  If,  upon  the 
foregoing  facts,  the  law  be  with  the  plain- 
tiff, then  we  find  for  the  plaintiff;  but,  if 
the  law  be  with  the  defendant,  then  we 
find  for  the  defendant.  John  A.  S.mith, 
Foreman."  The  appellant  moved  for 
judginent  on  the  special  verdict,  which 
motion  was  overruled,  and  an  exception 
reserved.  The  appellee  moved  for  judg- 
ment on  the  special  verdict,  and  the  court 
sustained  said  motion,  to  which  the  ap- 
pellant excepted.  Final  judgment  was  then 
entered  in  favor  of  appellee  for  .f 554. 63, 
and  costs. 

Appellant  tiled  a  motion  for  new  trial, 
which  was  overruled,  and  exceptions  re- 
served. The  appellant  assigns  as  error: 
(1)  That  the  court  erred  in  overruling  ap- 
pellant's motion  for  judgment  in  its  favor 
upon  the  special  verdict.  (2)  That  the 
court  erred  in  sustaiiiing  appellee's  mo- 
tion for  judgment  in  his  favor  on  the  spe- 
cial verdict.  (3)  That  the  court  erred  in 
overruling  appellan  t's  mo  tion  for  anew  tri- 
al. It  is'contended  that,  under  the  facts 
found,  the  appellee  is  only  t-ntitled  to  com- 
pensatory or  general  damages,  and  not  for 
the  special  damages  set  up  as  a  counter 
claim. 

We  think  the  facts  found  in  the  special 
verdict  entitled  the  appellee  to  recover  the 
special  damages  claimed.  In  Vickery  v. 
McCormick,  117  Ind.  .594-597,  20  N.  E.  Rep. 
495,  the  court  says:  "The  general  rule  is 
that  a  party  who  fails  to  comply  with  his 
contract  to' furnish  goods  is  liable  for  the 
value  of  the  goods  in  the  open  market  at 
the  time  of  the  failure.  But,  when  similar 
goods  cannot  be  purchased  in  the  market, 
the  measure  of  damages  is  the  actual  loss 
sustained  by  the  purchaser  in  not  receiving 
the  goods  according  to  the  contract." 
See  Rahm  v.  Deig.  23  N.  E.  Rep.  141,  and  au- 
thorities there  cited.     In  Hadley  v.  Baxen- 


dale,  9  Exch.  341,  Sedg.  Lead.  Cas.  120-1.30, 
the  court  states  what  we  deem  to   be   the 
truerulegoverningthe  asses«ment  of  dam- 
ages in  such  cases  as  this.     In  that  case  it 
is  said  :    "  \Vh(>re  two  parties  have  made  a 
contract,  which  one  of   them    has  broken, 
the  damages  which  the  otiier  pai-ty  ought 
to  receive  in  respect  to  such  breach  of  con- 
tract  should   be  such    as   may  fairly  and 
reasonably    be    considered   cither   arising 
naturally — i.   e.,   according   to    the  usual 
course  of  things— from  sucii  breach  of  con- 
tract itself,  or  such    as  may  reasonably  i)e 
supposed   to  have  been  in  the  contemi)la- 
tion  of  both  parties  at  the  timetliey  made 
the  contract  as  the  probable  result  of  the 
breach  of  it.  "    The  facts  found  by  the  jury 
show  that  the  .-ippellee,  at  and  just   prior 
to  August   20,  1881.  had  reconstructed  and 
built   his  hotel    building  in  the  city  of   Go- 
shen, lud.,  at  a  cost   of   -trio. 000,  and   that 
appellee  was  proprietor  and  manager  there- 
of, and   had  within   said   hotel    30   rotnns 
that  were  unfurnished,  and  when   so  un- 
furnished were  of  no   use  or  value   to   the 
appellee;  that  upon  said  day  he  conti'act- 
ed  with  the  appellant  to  sell  and  delivertO' 
him   the  several   items   of   property   men- 
tioned in  the  appellant's  complaint,  which 
consisted  of  the  necessary  furniture  to  fur- 
nish said    rooms,  at  and   for   the   pi-ice  of 
each   article  as  stated   in  the  complaint, 
and  agreed  to  deliverthe  same  and  set  the 
same  up  in  appellee's  hotel,  and   have  the 
same  ready  for  use  in  said   hotel  by  or  on 
the  15th  day  of  September,  1881;  that   the 
appellant,  at  the  time  of  the  making  of  said 
ct)ntract,  knew  the  puri)ose  for  which  said 
furniture  was  to  be  used.     The  contract 
was  to  furnish  the  furniture  for  30   rooms 
in  an  hotel,  and  setit  up  in  the  r(ioms,and 
have  it  ready  for  use  and  occupancy  by  a 
day  named.    From  thesefacts  it  necessari- 
ly follows,  as  a  conclusion,  that  the  party 
contracting  to  furnish  thesame  knew  that 
the  rooms  were  valueless  as   hotel   apart- 
m en t s  when  u n f u  r n i sh ed  ;  that    t h e  f u r n i- 
ture  was  necessary  to  enable  the  purchaser 
to  use  and    occupy  the  same,  and  operate 
his  hotel;  and  that  the  appellee  would   be 
deprived  of  the  use  of  such  rooms  for  such 
purposeuntil  itcomplied  with  itscontract. 
The  facts  found  further  show  that  the  ap- 
pellant commenced    airnishing  the  furni- 
ture soon  after  the  date  when  it  was  all  to 
have  been  furnished  and  put  up  in  the  rooms, 
furnishing  part  at  one  time  and  part  at  an 
other.     The  facts  show  the  appellee  had 
reconstructed  and  rebuilta  valuable  hotel, 
and    was   operating  it    himself,   and    the 
damages    naturally    resulting    from     the 
breaci)  of    the  contract,  according   to   the 
facts  found,  were  what   the  rooms  would 
have  been  worth   to  appellee  furnished  ac- 
cording to   the  contract  more  than  they 
were  worth  to  him  unfurnished,  during  the 
delay  in  complying  with  the  contract.   Ap- 
pellee built  the  house  for  a  particular  pur- 
pose, and  was  having  it  furnished  for  such 
puri)ose.     He  was  not   bound   to  rent  out 
the  rooms  for  another  purpose,  even  if  he 
could  have   done  so.     If  there  had    been  a 
breach  and  a  total  failure  of  the  appellant 
to    have  furnished   the  whole   or  any  part 
of  the  furniture,  and  the  appellee  had  been 
notified  that   he  was  not  intending  to  fur- 
nish it.  then  the  appellant  would  have  been 
liable  for  the  difiureuce  in  value  of   the  fur- 


254 


BREACH  OF  CONTEACTS  KESrECTING  rERSOXAL  rrvOrERTY, 


nitiire  between  its  prieo  in  tlie  open  mar- 
ket and  the  contract  price,  as  wdl  as  tlie 
loss  of  the  use  of  the  rooms  for  the  time 
necessary  to  have  procured  the  furniture 
elsewhere;  but  in  this  case  the  appellant 
furnished  the  furniture,  and  appellee  ac- 
cepted it,  so  that  the  damage  was  the  loss 
sustained  by  reason  of  the  delay.  We  think 
the  loss  of  the  use  of  the  rooms  as  they 
were  to  be  furnished  might  fairly  be  con- 
sidered to  have  been  contemplated  by  the 
parties  at  the  time  of  the  making  of  the 
contract.  In  Eichardson  v.  Chynoweth, 
2i)  Wis.  056,  it  wap»  held  that  a  defendant 
failing  to  deliver  an  article,  knowing  the 
purpose  for  which  it  was  purchased,  was 
liable  for  the  profits  the  i)urchaser  would 
have  made.  See  1  Sedg.  Dam.  (7th  Ed.) 
218-239;  Field,  Dam.  §  250;  City  of  Terre 
Haute  V.  Hudnut,112  Ind.  542, 13  N.  E.  Rep. 
6S(>. 

It  is  contended  that  the  facts  found  do 
not  state  the  damages  correctly  ;  that,  if 
the  plaintiff  is  entitled  to  recover,  the 
amount  he  Is  entitled  to  recover  would  be 
the  difference  between  the  rental  value  of 
the  rooms,  unfurnished  and  furnished. 
This  objection  we  do  not  think  available 
for  a  reversal  of  the  judgment.  When  spe- 
cial damages  of  this  character  are  recover- 
able, it  is  the  damage  the  pai'ty  himself  has 
sustained  thatheis  entitled  to  recover.    If 

A.  purchase  grain  of  B.,  and  at  thetimeA. 
has  a  previous  contract  to  sell  and  deliver 
grain   to  C,  and  A.  purchases  the  grain  of 

B.  with  a  view  of  filling  his  previous  con- 
tract with  C-.and  C.  is  advised  of  that  fact, 
and  the  contract  is  such  that  on  failure 
to  deliver  B.  becomes  liable  to  A.  for  the 
profit  he  would  have  made,  the  damage  re- 
coverable is  the  profit  A.  would  hav^e 
made;  and  that  amount  might  be  deter- 
mined by  a  finding  of  the  facts  showing  the 
amount  A.  was  to  pay  B.  for  the  grain,  and 
the  amount  he  would   have  received   from 

C.  for  the  same.  So,  in  this  case,  the  amount 
of  damage  that  the  appellee  was  entitled 


to  recover  w^as  the  difference  in  value  tp 
the  ap])ollee  in  tlie  rooms,  furnished  and 
unfurnished,  for  the  time  they  lemained 
unfurnished  by  reason  of  appellant's  fail- 
ure to  furnish  the  furniture;  and  that 
amount  is  determined  by  finding  what 
the  rooms  were  worth  to  the  appellee  un- 
furnished, and  what  they  were  worth  fur- 
nished, for  the  time  he  was  deprived  of  the 
use  of  them  for  the  purpose  for  which  they 
were  to  be  used.  The  jury  has  found  as 
facts  that  the  use  of  the  I'ooms  unfurnished 
was  worth  nothing  to  tlie  appellee  during 
that  time,  and  furnished  they  would  have 
been  worth  75  cents  per  day,  and  the  num- 
ber of  days  each  room  was  unfurnished 
from  the  date  appellant  contracted  to  set 
up  the  furniturein  therooms  is  also  stated 
and  found  in  the  verdict,  and  the  gross 
amount  maybe  determined  by  a  merecom- 
putation.  The  facts  found  in  the  special 
verdict  entitle  the  appellee  to  a  judgment 
for  the  amount  of  the  damages  found  to 
have  been  sustained  by  him.  Fassion  v. 
Landrey  (this  term)  24  N.  E.  90.  The  facts 
found  cover  all  the  issues  in  the  case,  and 
that  is  all  that  is  required  by  a  special  ver- 
dict. 

It  is  further  contended  that  the  court 
erred  in  not  sustaining  themotion  for  new 
trial,  for  the  reason  that  the  judgment  ren- 
dered upon  the  verdict  is  in  excess  of  the 
amount  found  due  the  appellee  by  the  ver- 
dict, but  this  question  is  not  presented  by 
the  record.  If  the  judgment  does  not  fol- 
low the  verdict,  or  is  not  such  a  judgment 
as  the  party  w^as  entitled  to  have  rendered 
upon  the  verdict,  to  present  any  question 
as  to  the  amount  or  form  of  the  judgment, 
it  was  necessai'y  to  make  a.  motion  to 
modify  the  judgment,  and  properly  reserve 
exceptions  in  case  the  motion  was  ov^er- 
luled.  It  follows,  therefore,  from  the  con- 
clusion we  hav^e  reached,  that  there  is  no 
error  in  the  record  for  which  the  judgment 
should  be  reversed.  Judgment  affirmed, 
with  costs. 


BREACH  OF  AGREEMENT  TO  SITELY  GOODS. 


BARNES  V.  BROWN  et  al. 

(29  N.  E.  760,  130  N.  Y.  372.) 

Court  of  Appeals  of  New  York,  Second   Divi- 
sion.   Jan.  20,  1892. 

Appeal  from  supreme  court,  general  term, 
first  department. 

Action  by  Oliver  W.  Barnes  against  George 
H.  Brown,  and  James  Seligniau,  Jesse  Selig- 
man,  and  David  Seligmau,  as  executors  of 
Joseph  Seligman.  Tlie  general  term  dismiss- 
ed the  complaint  as  to  the  executors,  and  re- 
versed the  referee's  decision,  -which  awarded 
onlj'  nominal  damages  against  Brown.  Plain- 
tiff and  Brown  appeal.  Affirmed  as  to  the 
executors,  and  reversed  as  to  Brown. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  Bradley,  J.: 

The  action   was  brought  to  recover   dam- 
ages for  the  alleged  breach   of  contract   of 
Avhich  the  following  is  a  copy,  to-wit:    "Oli- 
ver W.  Barnes  having,  by  instruments  bear- 
ing even  date  herewith,  assigned  and  trans- 
ferred to  us,   George  H.   Brown  and  Joseph 
Seligman,  all  claims  and  demands  against  the 
Kew   York  City   Central   Underground    Rail- 
way Company,  and  bis  title  to  certain  sub- 
scriptions to  the  capital  stock  of  said  com- 
pany, and  also  any  interest  he  may  have  in 
a    certain    alleged    contract    made    with   the 
said  company  by  Francis  P.  Byrne,  and  hav- 
ing also  transferred  sixty  shares  of  stock  in 
said  company:    Now,  we,  George  H.  Brown 
and  Joseph  Seligman,  do  hereby,   in  consid- 
eration of  the  premises  and  of  one  dollar  to 
us  paid  by  the  said  Oliver  W.  Barnes,  agree 
that  we  will,  upon  certain  amendments  to  the 
charter  of  the  said  New  York  City  Central 
Underground   Railway   Company,   now   pend- 
ing before  the  legislature  of  the  state  of  New 
York,  becoming  a  law,  pay,  or  cause  to  be 
paid,  to  the  said  Oliver  W.  Barnes,  his  rep- 
resentatives and  assigns,  the   sum  of  twen- 
ty-seven thousand  five  hundred  dollars  in  cur- 
rency of  the  United  States,  being  the  amount 
of  certain  advances  made  and  services  ren- 
dered by  the  said  Barnes  to  the  said  railway 
company;    and  also  that  we  will  cause  to  be 
delivered  to  the  said  Barnes  or  his  assigns 
at  the  time  of  the  payment  of  the  said  mon- 
ey two  thousand  shares  of  the  capital  stock 
of    the    said    railway    company,    Avhich    said 
stock  is  to  be  full-paid  stock.     And  ^\e  fur- 
ther agree  with  the  .said  Oliver  W.  Barnes, 
his  representatives  and  assigns,  that,  in  the 
event  of  the  said  amendments  not  becoming 
a  law  at  the  present  session  of  the  legislature, 
we  will  either  cause  said  money  to  be  paid, 
and  said  two  thousand  shares  of  stock  deliv- 
ered to   the   said    Barnes  or  his   assigns,    or 
have  reassigned  to  the  said  Barnes  or  his  as- 
signs the  claims,  demands,  and  rights  so  as- 
signed to  us,  and  transfer  to  him  or  his  as- 
signs the  said  sixty  shares  of  stock  so  trans- 
ferred  to   us    the   next    day    after   the  close 
of  the  present   session   of  the  legislature  of 
New  York.     And  we  further  agree  that  not 


more  than  one  hundred  additional  shares  of 
the  stock  of   said   company   shall  be   issued 
until  the  said  payment  be  made  and  stock 
delivered    without   the   consent   of   the   said 
Barnes,  and  that  so  much  of  said  one  hun- 
dred shares  as  shall  be  issued  shall  be  trans- 
ferred to  the  said  Barnes,  if  we  do  not  ex- 
ercise our  option  of  paying  said  twenty-sev- 
en thousand  five  hundred  dollars,  and  deliver 
ing  said  two  thotisand  shares  on  the  failure 
of  the  said  amendments  to  become  a   l-^-.w 
at  the  present  session.    And  we  further  a^.'ee 
that  no  contract  for  the  construction  ot  the 
railway  of  the  company  shall  be  entered  into 
without  the  consent  of  the  said  Barnes  until 
the  said  money  shall  be  paid  and  the  stock 
delivered.     In  witness  whereof  we  have  here- 
unto set  our  hands  and   seals  this  twenty- 
sixth  day  of  March,  in  the  year  one  thousand 
eight  hundred  and  seventy-two.     George  H. 
Brown.    [L.    S.]    Joseph   Seligman.    [L.    S.]" 
AVhen,  in  18S2,  this  action  was  commenced, 
Joseph  Seligman  had  died,  and  executors  of 
his    will    were    joined    as    defendants    with 
Brown.     The  alleged  default  was  in  the  fail- 
ure or  refusal  to  deliver  to  the  plaintiff  the 
2,000  shares  of  the  stock  of  the  railway  com- 
pany,  as   Brown  and   Seligman   had   under- 
taken by  the  contract.     The  plaintiff  sought 
to   recover   ?200,000  and  interest.     The   ref- 
eree found  that  the  stock  had  no  value,  and 
directed  judgment  against  Brown  for  nomi- 
nal or  six  cents  damages;   and  as  to  the  de 
fendants  (executors)  the  referee  directed  judg- 
ment of  dismissal  of  complaint.     Judgment! 
were  entered  accordingly.     The  general  term 
affirmed  the   latter,   and  reversed  the  judg- 
ment for  nominal  damages,  and  as  to  \he  de- 
fendant Brown  granted  a  new  trial. 

Edward  C.  James  and  Ira  Leo  Bamberger, 
for  plaintiff.  Hamilton  Odell  and  John  E. 
Parsons,  for  defendants. 

BRADLEY,  J.,  (after  stating  the  facts.) 
The  main  controversy  has  relation  to  the 
rule  or  measure  of  damages  applicable  to  the 
breach  of  the  contract  upon  which  this  ac- 
tion was  founded.  While  the  plaintiff  claims 
that  damages  cannot  be  less  than  $200,000 
and  interest,  it  is  insisted  on  the  part  of  the 
defense  that  they  were  only  nominal.  Before 
proceeding  to  the  consideration  of  the  ques- 
tion in  that  respect,  reference  may  pi'operly 
be  made  to  the  facts  out  of  which  the  al- 
leged claim  arose.  The  New  York  City  Cen- 
tral Underground  Railway  Company  was  or- 
ganized under  an  act  incorporating  it,  and 
authorizing  the  company  to  construct  and 
operate  an  underground  railway  in  the  city 
of  New  York,  passed  in  18G8,  and  amended 
in  1SC9.  The  authorized  capital  stock  of  the 
company  was  ?10,000,000.  At  the  time  the 
contract  of  March  26,  1872.  was  made,  the 
plaintiff  was  president  of  the  company.  He 
then  had  some  claims  against  it,  and  only 
117  shares  of  capital  stock  had  been  issued, 
of  which  he  held  03  shares.     By  the  trans- 


256 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


fer  of  the  60  shares  to  Brown  and  Seligman, 
they  took  the  control  of  the  organization  of 
the  company.  The  amendments  to  the  char- 
ter then  pending  in  the  legislature  did  not 
become  a  law,  and  consequently  it  was  op- 
tional with  them  to  either  retain  their  pur- 
chase and  pay,  or  surrender  what  they  had 
received,  and  put  an  end  to  the  contract. 
They,  howevei",  concluded  to  treat  it  as  ef- 
fectual, and  assumed  the  undertaliing  to  per- 
form, and  afterwards  did  pay  to  the  plain- 
tiff the  $27,500,  and  did  deliver  to  the  plain- 
tiff certificates  of  2,000  shares  of  the  capital 
stock  of  the  company.  This  was  apparently 
full  performance,  but  in  fact  was  not,  be- 
cause that  so  delivered  was  not  paid  stock; 
and  when  this  v\^as  discovered  by  the  plaintiil 
he  offered  to  return  the  certificates,  and  de- 
manded such  as  he  was  entitled  to.  Further 
performance  was  refused,  and  this  action  fol- 
lowed. The  only  question  as  against  the 
defendant  Brown  was  one  of  damages;  and 
the  referee  found  that  at  the  time  when  he 
and  Seligman  undertook  to  deliver  the  stock 
to  plaintiff  it  had  no  actual  or  market  value, 
and  determined  that  he  was  entitled  to  re- 
cover nominal  damages  only.  The  stock  cer- 
tainly had  no  market  value.  None  was  in 
the  market.  This  finding  and  conclusion 
were  challenged  by  the  iDlaintiff's  exceptions. 
By  reference  to  the  condition  of  the  company, 
it  is  seen  that  the  total  amount  of  money  re- 
ceived by  it  on  account  of  subscriptions  to  its 
stock  was  $5,700,  and  that  was  received  in 
1869  and  1871.  The  other  credits  to  the  cap- 
ital stock  account  were  in  demand  loans  and 
special  services  rendered  the  company.  The 
various  efforts  prior  to  1872  were  unsucces- 
fully  made  to  raise  money  for  the  purpose  of 
construction  of  the  railway,  and  the  reason 
why  the  bonds  of  the  company  could  not  be 
negotiated  was  that  it  had  been  unable  to 
obtain  subscriptions  to  its  capital  stock  to 
pay  for  right  of  way.  The  land  and  conse- 
quential damages  incident  to  the  construction 
of  the  I'ailway  were  estimated  at  5,000,000; 
and  the  expenditures  by  the  company  for 
work  done  towards  construction  and  for  land 
and  land  damages  did  not  exceed  $4,000. 
The  indebtedness  of  the  company  was  about 
$350,000.  This  was,  in  general  terms,  the 
situation  of  the  company  when  the  contract 
of  March  26,  1872,  was  made;  and  it  was 
known  as  well  to  Brown  and  Seligman  as 
to  the  plaintiff.  Whatever  of  value  they  took 
by  the  contract  was  in  the  franchise  of  the 
companj%  and  was  dependent  upon  the  use 
which  could  be  made  of  it  by  way  of  the 
construction  and  operation  of  an  underground 
railway.  While  the  futility  of  the  enter- 
prise tended  to  show  that  it  never  had  any 
actual  value,  there  evidently  was  hope  and 
expectation  of  success  entertained  by  Brown 
and  Seligman  when  they  elected  to  retain  the 
benefit  of  the  contract,  and  it  is  in  that  view 
insisted  by  the  plaintiff  that  the  stock  then 
had  a  value  which  to  him  may  at  that  time 
have  been  avaihible,  although  later  it  turn- 


ed out  to  have  had  none,  and  therefore  he 
lost  whatever  he  may  have  realized  by  its 
conversion,  if  it  had  in  due  time  been  deliv- 
ered to  him.  There  is  apparently  some  force 
in  this  suggestion,  but  it  is  entirely  specula- 
tive, assuming  that  the  stock  then  in  fact 
had  no  actual  value  as  well  as  no  market 
value.  There  was  some  confiict  in  the  ex- 
pert evidence  upon  the  subject,  founded  up- 
on the  situation  of  the  company.  While  that 
on  the  part  of  the  defendants  was  that  the 
stock  had  no  value,  that  of  the  witnesses 
called  by  the  plaintiff  was  to  the  effect  that 
it  was,  as  the  situation  then  appeared,  woi'th 
par.  It  may  be  observed  that  the  plaintiff 
held  the  stock  represented  by  the  certificates 
so  delivered  to  him  until  about  September  1, 
1874,  upon  the  assumption  tliat  it  was  full- 
paid  stock,  before  his  discoveiy  that  it  was 
otherwise. 

The  finding  of  the  referee  that  the  stock 
had  neither  actual  nor  market  value  was 
supported  by  evidence,  and  for  the  purposes 
of  this  review  must  be  deemed  conclusive. 
But  it  is  insisted  by  the  learned  counsel  for 
the  plaintiff  that  the  plaintiff  should  never- 
theless have  recovered  the  $200,000  and  in- 
terest upon  it  because  he  was  entitled  to  the 
stock  or  to  a  sum  which  it  would  cost  to 
obtain  it.  As  a  general  rule,  the  damages 
which  a  party  is  entitled  to  recover  against 
another  for  breach  of  contract  are  such  as 
will  indemnify  him  for  the  loss  he  has  suf- 
fered by  the  default;  and  it  is  Avith  a  view 
to  that  result  that  the  rules  for  ascertaining 
and  awarding  damages  have  been  adopted. 
The  purpose  of  the  rule  in  that  respect  is  to 
leave  the  party  in  no  worse,  and  place  him 
in  no  better,  condition  than  he  would  have 
been  if  the  act  or  default  complained  of  had 
had  not  been  committed.  It  was  with  a 
view  to  such  measure  of  relief,  and  the 
adoption  of  a  rvUe  to  accomplish  it,  that 
the  doctrine  which  gave  the  highest  market 
value  up  to  the  time  of  the  trial  as  the 
measure  of  damages  for  conversion  of  proper- 
ty of  fiuctuating  value,  as  held  in  Markham 
V.  Jaudon,  41  N.  Y.  235,  and  some  prior  cases, 
was  overruled  in  Baker  v.  Drake,  53  N.  Y. 
211,  and  the  market  value  for  a  reasonable 
j  time  within  which  to  replace  the  property 
was  adopted  as  furnishing  the  guide  to  the 
proper  measure  of  damages  and  the  more  sat- 
isfactory means  of  indemnity.  In  that  case 
the  defendants,  pursuant  to  an  arrangement 
with  the  plaintiff,  had  purchased  stocks  to 
hold  and  carry,  subject  to  his  order,  so  long 
as  he  kept  his  margin  good.  The  defend- 
ants disposed  of  the  stock  in  violation  of  the 
agreement;  and  the  court  there  held  sub- 
stantially that  an  amount  sufficient  to  indem- 
nify a  party  injured  for  the  loss  naturally, 
reasonably,  and  proximately  resulting  from 
the  act  complained  of,  and  which  a  proper 
degree  of  prudence  on  the  part  of  the  com- 
plainant would  not  have  averted,  is  the  prop- 
er measure  of  recovery  when  punitive  dam- 
ages are  not  allowable;    and  that   "the  ad- 


BREACH  OF  AGREEMENT  TO  SUrrLY  GOODS. 


257 


vance  in  the  market  price  of  the  stock  from 
the  time  of  the  sale  up  to  a  reasonable  time 
to  replace  it  after  the  plaintiff  received  no- 
tice of  the  sale  would  afford  a  complete 
indemnity."  The  principle  upon  which  the 
determination  of  Baker  v.  Drake  rested  was 
that  the  measure  of  the  plaintiff's  damages 
was  governed  by  the  opportunity  which  was 
afforded  by  the  market  for  him  within  a 
reasonable  time  to  replace  the  stock  or  the 
refusal  of  the  defendant  to  do  so.  GG  N.  Y. 
518;  Colt  V.  Owens,  90  N.  Y.  368.  And  in 
Wright  V.  Baid<.  110  N.  Y.  237.  18  N.  E. 
79,  the  same  rule  was  held  in  like  manner 
applicable  where  stock  fully  paid  for  by  the 
owner  is,  through  the  honest  mistake  of  the 
pledgee,  converted  by  him,  and  he  refiises 
to  replace  it.  Thereupon  the  owner  may  do 
so  within  a  reasonable  time,  and  the  highest 
market  price  within  that  time  is  the  proper 
measure  of  damages.  This  is  the  recognized 
rule  in  this  state,  and  it  is  applicable  alike 
to  actions  upon  contract  as  in  tort. 

In  the  present  case  there  was  no  market 
to  resort  to  for  the  plaintiff  to  supply  him- 
self with  the  stock,  nor  any  market  value  to 
furnish  the  measure  of  damages.  The  rule 
applied  in  the  cases  last  cited  was  not,  there- 
fore, in  that  sense  applicable  to  the  situa- 
tion in  the  case  at  bar.  A  subscription,  how- 
ever, to  2.000  shares  of  the  capital  stock  of 
the  railway  company,  and  payment  of  the 
full  amount  to  the  company,  would  have 
produced  the  stock,  and  it  may  be  assumed 
that  it  could  not  otherwise  have  been  pro- 
cured. It  is  upon  that  ground  that  the 
plaintiff  insists  that  the  liability  of  the  de- 
fendant is  measured  by  that  amount.  This 
would  have  been  so  if  the  agreement  of 
Brown  and  Seligman  had  been  to  pay  the 
plaintiff  ^200,000  in  the  stock  of  the  company. 
Then  their  indebtedness  or  liability  would 
not  have  been  controlled  by  the  value  of  the 
stock,  but  would  have  been  fixed  by  the 'con- 
tract; but  w^hen  the  specific  quantum  of  the 
stock  was  made  the  consideration  in  that  re- 
spect for  the  plaintift''s  sale  to  them,  on 
their  failure  to  deliver  it  he  was  entitled  in 
damages  to  the  equivalent  of  that  which  they 
had  undertaken  to  render.  In  the  absence 
of  special  circumstances,  in  an  action  for 
conversion  of  personal  property,  as  well  as 
one  for  failure  to  deliver  it  in  performance 
of  a  contract,  where  consideration  has  been 
received,  the  value  of  the  property  at  the 
time  of  such  conversion  or  default,  with  in- 
terest, is  the  measure  of  compensation. 
Ormsby  v.  Mining  Co.,  56  N.  Y.  623;  Parsons 
V.  Sutton,  GG  N.  Y.  92.  No  special  circum- 
stances were  alleged  in  the  complaint  to  take 
this  case  out  of  the  general  rule.  Nor  was 
there  any  fluctuation  in  the  value  of  the  stock 
succeeding  the  time  for  its  delivery,  under 
the  contract  to  qualify  the  application  of  such 
rule. 

The  damages  which  a  party  ordinarily  may 
recover  for  breach  of  contract  are  those  which 
naturally  flow  from  the  default;    and,  if  the 
LAW  DAM.2d  Ed.— 17 


contract  is  made  in  reference  to  special  cir- 
cumstances aft'ecting  the  measure  of  compen- 
sation, such  circumstances  may  be  treated  a? 
within  the  contemplation  of  the  parties,  and 
constitute  a  basis  for  the  assessment  of  dam- 
ages.    Booth  v.  Mill  Co.,  GO  N.  Y.  487.    They 
come  within  the  meaning  of  special  damages, 
and    miist   bo   the    subject   of   allegation    in 
pleading  to  entitle  the  party  to  make  proof 
of  them,  unless  objection  in  that  respect  be 
waived.     In   the  present   case,    no  facts   of 
special  character  relating  to   damages   were 
alleged,    nor    were    any   established   by    the 
evidence  further  than  the  mere  fact  that  the 
stock  of  the  company  had  no  market  value. 
If,  notwithstanding  that  fact,  the  stock  may 
have  had  an  actual  ^■alu^  a  different  (luestion 
would  have  been  presented;    for  the  plaintiff 
could  not  be  subjected  to  loss,  nor  could  the- 
defendant  be  permitted  to  profit,  by  the  fact 
that  the  stock  had  no  market  value  at  the 
stipulated    time    for    delivery.      Then    other 
means    than    those   afforded    by    the    market 
would  be  resorted  to  under  the  contract,  as 
within   the  contemplation  of   the  parties   tO' 
ascertain  the  amount  requisite  to  full  indem- 
nity  to  the   plaintiff.     Sternfels  v.    Clark.    2 
Hvm.  122,  70  N.  Y.  G08.     There  may  be  cases 
in  which  damages  have  no  support  in  market 
values,   where  the   value   is  peculiar  to  the 
party  entitled  to  performance,  and  relief  will 
be  given  accordingly.     Scattergood  v.  Wood!, 
14  Hun,  269,  79  N,  Y.  263;    Parsons  v.  Sut- 
ton, 66  N.  Y.  92.     And  when  the  remedy  at 
law  for  compensation  is  inadequate  or  im- 
practicable,  it  may   be   found   in   equity   by 
way  of  specific  performance.     Pom.  Eq.  Jur. 
§  1401.     Those  are  supposed  cases  to  which 
the  principles  of  law  adapt  remedies  when 
they  arise.     But  in  the  case  at  bar  the  stock 
not  only  had  no  market  value;   it  also  had  no 
actual   value.     Nor    does    it   appear   that    it 
would  have  been  of  any  value  to  the  plain- 
tiff", or  of  any  substantial  benefit  to  him,  for 
any  purpose,  if  he  had  received  it.     The  de- 
fendant Brown,  and  his  associate,  Seligman, 
did  not,    by   the  contract,    undertake   to   do 
anything    to    give   any    future   value    to   the- 
stock   of  the  company.     Thus   we  have   the- 
simple  case  of  a  contract  to  deliver  a  cer- 
tificate for  a  certain  quantity  of  capital  stock 
then  having  no  existence,  and  when  due  and 
thereafter  having  no  value.     The  claim  that, 
because  the  creation  or  issue  of  this  worth- 
less stock  would  cost  its  par  value,  the  plain- 
tiff is  entitled  to  recover  that  sum,  does  not 
seem  to  have  the  support  of  any  well-defined 
principle  of  law.     But  it  is  said  that,  with; 
knowledge  of  the  situation.  Brown  and  his 
associate   absolutely    agreed    to    deliver    the 
stock,  and  therefore  they  were  bound  to  pay 
the  amount  requisite  to  accomplish  it  with- 
out regard  to  the  value  of  the  stock,  or  of 
its  beneficial  use  to  the  plaintiff.     In  an  ac- 
tion at  law  to  recover  damages  for  breach 
of  contract,  the  question  of  damages  is  one 
of  indemnity;    and  in  that  respect  the  reme- 
dy founded  upon  this  contract  does  not  differ 


253 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL.  PROPERTY. 


from  that  upon  any  other  contract  for  de- 
fault in  the  delivery  of  property  which  a 
party  has  unqualifiedly  undertaken  to  deliv- 
er for  a  consideration  received.  In  Dana  v. 
Fiedler,  12  N,  Y.  40,  the  measure  of  dam- 
ages for  failure  to  deliver  madder  pursuant 
to  contract  was  founded  upon  the  market 
value  at  the  time  of  the  default.  The  ques- 
tion there  arose  upon  the  exclusion  of  evi- 
dence speculative  in  character,  and  which 
for  that  reason  was  held  inadmissible  upon 
the  question  of  such  value.  Nor  does  Scat- 
tergood  v.  Wood  have  any  essential  applica- 
tion in  principle  to  the  case  at  bar.  In  that 
case  there  was  an  element  of  exemplary  dam- 
ages against  the  defendant,  who  had  willful- 
ly deprived  the  plaintiff  of  the  use  of  a  test 
machine  designed  by  him  for  a  special  pur- 
pose, in  consequence  of  which  he  was  put 
to  the  expense  of  constructing  another  for 
such  purpose.  Of  this  intended  use  the  de- 
fendant was  advised  when  he  appropriated 
and  withheld  the  machine  from  the  plaintiff. 
The  recovery  of  the  expense  of  constructing 
the  second  one  as  damage  for  the  detention 
of  the  other  was  sustained,  although,  by  rea- 
son (as  it  turned  out)  of  its  insufficiency, 
the  value  of  the  latter  was  much  less  than 
such  cost.  In  the  present  case  the  action  is 
founded  solely  upon  the  failure  to  deliver  to 
the  plaintiff  the  stock  without  any  supported 
claim  of  special  cu'cumstances  for  any  dam- 
ages other  than  such  as  flow  naturally  and 
reasonably  from  such  default  of  Brown  and 
Seligman.  While  the  performance  of  their 
contract  in  that  respect  may  have  required 
them  to  pay  to  the  company  $200,000,  the  en- 
tire value  of  its  performance  to  the  plain- 
tiff was  in  the  stock  which  they  undertook 
to  deliver  to  him,  and  this  was  the  only  ben- 
efit he  was  entitled  to  take  under  that  pro- 
vision of  the  contract.  The  value  of  the 
stock  or  its  pecuniaiy  equivalent  was  the 
measure  of  his  injury  by  the  default;  and, 
as  it  had  no  value,  the  plaintiff  was  award- 
ed complete  indemnity  by  the  conclusion  of 
the  referee  that  he  was  entitled  to  recover 
nominal  damages  only. 

There  was  no  error  in  the  ruling  of  the 
referee  by  which  evidence  of  value  of  the 
stock  was  received.  The  complaint  alleg- 
ed that  on  JanuaiT  22,  1873.  when  the  plain- 
tiff accepted  the  certificate  before  mentioned 
of  stock  in  performance  of  the  conti'act,  the 
stock  of  the  company  was  worth  and  salable 
in  the  market  at  its  full  par  or  face  value, 
and  demanded  judgment  for  that  amoimt  and 
interest  from  January  23,  1873.  This  was 
the  situation  of  the  complaint  when  the  evi- 
dence upon  the  question  of  value  was  given; 


and  the  plaintiff,  upon  a  state  of  facts  em- 
braced in  an  hypothetical  question,  called  up- 
on the  witnesses  to  state  the  value  of  the 
stock  in  January,  1S73.  This  was  the  time 
when,  by  the  issue  tendered  in  the  complaint 
and  taken  by  the  answer,  the  value  of  the 
stock  was  by  the  pleadings  brought  in  ques- 
tion; and  it  may  be  observed  that  the  as- 
sumed facts  upon  which  the  answers  of  the 
witnesses  were  predicated  were  the  same, 
and  no  different  at  that  time  than  they  were 
on  the  day  when  the  contract  matured. 

These  views  lead  to  the  conclusion  that, 
as  to  the  defendant  Brown,  the  judgment 
directed  by  the  referee  should  be  sustained. 
But,  as  the  order  granting  an  additional  al- 
lowance of  costs  to  that  defendant  may  be 
deemed  to  have  been  reversed  at  general 
term,  that  disposition  of  the  order  is  affirm- 
ed, and  the  costs  recovered  treated  as  re- 
duced accordingly.  The  conti'act  was  the 
joint  undertaking  of  Brown  and  Seligman. 
The  latter  having  died  before  the  action 
was  commenced,  his  personal  representatives 
were  joined  as  defendants  with  Brown.  The 
complaint  was  as  to  those  executors  dismiss- 
ed by  the  referee,  upon  the  ground  that  faclis 
sufficient  to  constitute  a  cause  of  action 
against  them  were  not  alleged.  Their  tes- 
tator having  only  the  relation  of  joint  con- 
tractor with  Brown,  his  death  placed  the 
primary  liability  upon  the  latter,  unless  he 
Avas  u-aable  to  pay  or  insolvent.  Upon  that 
fact  the  liability  of  those  personal  repre- 
sentatives to  the  plaintiff  upon  the  contract 
was  dependent,  and  that  fact  was  essential 
to  the  cause  of  action  against  them.  Grant 
V.  Shurter,  1  Wend^  14S;  Trustees  v.  Law- 
rence, 11  Paige,  80,  2  Denio,  577;  Pope  v. 
Cole,  55  N.  Y.  124,  and  cases  there  cited; 
Hauck  V.  Craighead.  67  N.  Y.  432.  It  was 
not  alleged.  This  defect  was  available  by 
objection  which  was  taken  at  the  trial. 
Code,  §  499. 

It  does  not  appear  on  what  ground  the 
motion  to  amend  the  complaint  was  denied. 
The  plaintiff  was  not  entitled  to  it  as  mat- 
ter of  right;  and  the  discretionary  power  of 
the  referee  exercised  in  denying  the  amend- 
ment is  not  the  subject  of  review  here.  The 
judgment  in  favor  of  the  defendants,  Selig- 
man, as  modified  by  the  general  term,  should 
be  affirmed;  and  the  order  reversing  the  judg- 
ment, and  granting  a  new  trial  as  against 
defendant  Brown,  should  be  reversed,  and 
the  judgment  entered  upon  the  report  of  the 
referee  (after  deducting  therefrom  the  amount 
of  the  additional  allowance  of  costs)  affirmed. 
All  concur. 

Judgment  accordingly. 


BREACH  OF  WARRANTY  OF  QUAXITY. 


259 


BEEMAN  V.  BANTA. 

(23  N.  E.  887,  118  N.  Y.  538.) 

■Court  of  Appeals   of  New   York,   Second  Divi- 
sion.   Feb.  25,  1890. 

Appeal  from  supreme  court,  general 
term,  foiirtli  department. 

Action  by  Marcus  M.  Bceman  against 
George  A.  Banta.  There  was  a  verdict  and 
judgment  for  plaintiff,  which  was  affirmed 
by  the  general  term,  and  defendant  again 
appeals. 

RhodoH,  Coons  Sc  Higgins  and  John  H. 
Parsons,  for  ai)ppllant.  Baldwin  &  Ken- 
nedy, for  respondent. 

PARKER,  J.  The  recovery  in  this  action 
was  for  da  mages  claimed  to  have  been  sus- 
tained because  of  a  breach  of  an  exi)ress 
warranty  on  the  pai-t  of  the  defendant  to 
so  construct  a  freezer  for  the  plaintiff  as 
that  chickens  could  be  kept  therein  In  per- 
fect condition.  The  juiy  have  found  the 
making  of  the  warranty,  1  Is  breach ,  and  tiio 
amount  of  damages  resulting  therefrom. 
The  general  terra  have  affirmed  these  tind- 
ings,  and,  as  there  is  some  evidence  to  sup- 
port each  proposition,  we  have  but  to  con- 
sider the  exceptions  taken.  The  appellant 
excepted  to  the  change  of  thecourt  respect- 
ing the  measure  of  damages.  Upon  the 
trial  he  insisted,  and  still  urges,  that  the 
proper  measure  of  damages  is  the  cost  of 
so  changing  the  freezer  as  to  obviate  the 
•defect,  and  make  it  conform  to  the  war- 
ranty. And  Milk  Pan  Co.  v.  Remington, 
109  N.  Y.  143,  16  N.  E.  Rep.  4S.  is  cited  in 
support  of  such  contention.  That  decision 
was  not  intended  to,  nor  does  it,  modify 
the  rule  as  recognized  and  enforced  in  Pas- 
singer  V.  Thorburn,  34  N.  Y.  G-34;  White  v. 
Miller,  71  N.  Y.  133 ;  Wakeman  v.  Manufact- 
uring Co.,  101  N.  Y.  205,  4  N.  E.  Rep.  2G4; 
Reed  v.  McConuell,  101  N.  Y.  276, 4  N.  E.  Rep. 
718;  and  kindred  cases.  In  that  case  the 
argument  of  the  court  demonstrates — 
I'lrst,  that  improper  evidence  was  received ; 
and,  second,  that  the  finding  of  the  referee 
was  without  evidence  to  support  it.  No 
other  proposition  was  decided,  and  the 
discussion  is  not  applicable  to  the  facts  be- 
fore us.  The  plaintiff  was  largely  engaged 
in  preparing  poultry  for  market,  which  he 
had  either  i-aised  or  purchased.  Before 
meeting  the  defendant,  he  had  attempted 
to  keep  chickens  for  the  early  spring  mar- 
ket in  a  freezer  or  cooler  which  he  had  con- 
structed for  the  purpose.  The  attempt  was 
unsuccessful,  and  resulted  in  a  loss.  The 
jury  have  found,  in  effect,  that  the  defend- 
ant, with  knowledge  of  this  intention  of 
the  plaintiff  to  at  once  make  use  of  it  in 
the  freezing  and  preservation  of  chickens 
ior  the  May  market  following,  expressly 


represented  and  warranted  that  for  about 
$500   he  would  construct  a  freezer  which 
should   keep  them  in  perfect  condition  for 
such   market;  that  he  failed   to  keep  his 
contract  in  such  respect,  resulting  in  a  loss 
to  the  plaintiff  of  many  hundred  pounds  of 
chickens.    Thocourtcharged  the  jury  that, 
if  they  should  find  for  the  plaintiff,  he  was 
entitled  to  recover  as  one  of  the  elements 
of  damage  the  difference  between  the  value 
of  the  refrigerator  as  constructed,  and  its 
value  as  it  would  liave  been  if  made  accord- 
ing to  contract.     The  correctness   of  this 
instruction  does  not  admit  of  questioning. 
Had    the  defendant  made  no  use  of  the 
freezer,  such  rule  would  have  embraced  all 
the  damages  recoverable.    Buthedidmako 
use  of  it,  and   such  use  as  was  contem- 
plated by  the  contract  of  the  parties.    The 
result  was  the  total  loss   of  hundreds  of 
X)ounds  of  chickens.     The  fact  that  the  de- 
fendant well  knew  the   u.se  to  which   the 
freezer  was  to  be  immediately  put,  and  his 
representation  and  warranty  that  it  would 
keep  chickens  in  perfect  condition,  burden 
liim  with  the  damage  sustained  because  of 
his  failure  to   make  good   the  warranty. 
Upon   that  (luestion  the  coui't  instructed 
the  jury  that  the  plaintiff  was  entitled  to 
recover  the  value  of  the  chickens,  less  cost 
of  getting  them  to  market,  including  freight 
and   fees  of  commission   merchant.     The 
question  of  value  was  left  to  the  jury,  but 
they  were  permitted  to  consider  the  evi- 
dence tendingto  show  that  frozen chicken.s 
were  worth  40  cents  a  pound  in  the  market 
during  the  month  of  May.     Such  instruc- 
tion we  consider  authorized.    The  object 
of  the  freezer  was  to  preserve  chickens  for 
the  May  market.    The  expense  of  construc- 
tion and  trouble,  as  Avell  as  expense  of  op- 
eration, was  incurred  and   undertaken  in 
order  to  secure  the  enhanced  prices  of  the 
month   of  May.     It  was  the  extra  profit 
which  the  plaintiff  was  contracting  to  se- 
cure, and,  in  so  far  as  the  profits  contem- 
plated by  the  parties  can  be  proven,  they 
may  be  considered.     Gains  prevented,  as 
well  as  losses  sustained,  are  proper  ele- 
ments of  damage.  Wakeman  v.  Manufactur- 
ing Co.,  101  N.  Y.  205.  4  N.  E.  Rep.  2()4.     We 
have  carefully  examined  the  other  excep- 
tions to   the  charge  as  made,  and   to  the 
refusals  to  charge  as  requested,  and  also 
the  exceptions  taken  to  the  admissibility 
of  testimony,  but  find  no  error  justifying 
a  reversal.    The  insistence  of  the  appel- 
lant that   the  judgment  be  reversed,  be- 
cause against  the  weight  of  evidence,  may 
have  been  entitled  to  some  consideration 
by  the  general   term,  but  it  cannot  be  re- 
garded here      The  iudgment  should  be  af- 
firmed.    All  concur,  except  FOLLETT,  C. 
J.,  and  VANN,  .1.,  not  sitting. 
Judgment  affirmed. 


260 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


SHAW  et  al.  v.  SMITH  et  al. 

SHAW   V.  JONES. 

(25  Pac.  886,  887,  45  Kan.  334.) 

Supreme  Court  of  Kansas.    Feb.  7,  1891. 

Error  from  district  court,  Cowley  coun- 
ty; M.  G.  Tkoup,  Judse. 

Siimnel  Dnlton  and  Samuel  J.  Day,  for 
plaintiffs  in  error.  S.  E.  Fink,  for  defend- 
ants in  error. 

VALENTINE,   .T.     This  was   an    action 
brou.i^ht  before  a  jiiHtice   of    tlio   peace   of 
Cowlev  county  on    January  31,  1SS7,  by  G. 
P,.  Sluiw  ct  Co.  against   Yates   Smith    and 
James    W.  McCiellen,  for  the   recovery    of 
$12,  and  interest,  upon    the  following  in- 
strument in  writinsr,  to-wit:  "Cambridge, 
April  30,  1SS(>.     On  or  before   the  first   day 
of  October,  ISSG,  we  promise  to  pay  to  the 
order  of  G.  B.  Shaw  &  Co.,  at  their  office 
in  Cambridg-e.  twelve  dollars,  for  value  re- 
ceived, witli  iiiterest  after  maturity, at  the 
rate  of  ten  per  cent,  per  annum  until  paid. 
This  note  is  given  in  part  consideration  of 
the  sale  to  Y.  Smith  of  eight   bushels  flax- 
seed, by  said  G.  B.  Shaw  &  Co.;  and,  as  a 
further  consideration  therefor,  we  agree  to 
plant  14  acres  with  said  seed,  to  cultivate, 
harvest,  and  clean  the  same  in  proper  and 
careful  manner,  and  deliver  to  G.  B.  Shaw 
&  Co.  at  Cambridge,  Kansas,  on  or  before 
the  1st   day  of   December,  iSsG,  the   whole 
crop   i-aised   therefrom,   at   a   price    men- 
tioned   below,   per  bushel   of  56  lbs.,   for 
pure  and  primeflaxseed  ;  flaxseed  not  pure 
and  prime  to  be  inspected  and  graded  sub- 
ject to  the  rules  of  the  St.  Louis  Merchants' 
Exchange.     And  should  we   sell   or  trade, 
or  attempt  to  offer  to  sell    or  trade,  such 
crop  to  any  other  person  or   persons  than 
Baid  G.  B.  "Snaw  &  Co.,  or  order,  then   the 
note   hereto   attached  shall   immediately 
become  due  and  payable;  and  the  said    G. 
B.  Shaw  &  Co.,  or  their  assigns,  are  here- 
by authorized    to   enter   any    building   or 
premises  without  any  legal  process  v.- hat- 
ever,   and   seize    and    remove    such    crop 
wliatsoever  (and   in    whosesoever  posses- 
ion the  same  may  be  found),  and  to  pay 
me    the    balance   on     dema.nd,    after    the 
amount  due  upon   said  note   has   been  de- 
ducted, togetlier   with    all  costs   and   ex- 
pense incurred,  where  seizure  is  necessai-y  ; 
price  to  be  paid  per  bushel,  on  basis  of  pure, 
to  be  35  cents  less    than  St.  Louis   market 
price  on   day   of  deliveiy.     Yatks  Smith. 
Ja.mics  W.  McCi.ellI'.n."    Afterwards   the 
case  was  taken  on  appeal  to    the   district 
court,  where  the  case  was  tried  before  the 
court  and  a  jury,  witli  the  result  hereafter 
stilted,     '^rhe  i)laintiffs'  bill    of   particulars 
simply  set   up   tlie   foregoing   instrument, 
and  asked  judgment  thereon   for  f  12,  and 
interest  at   the  rate  of  10  per  cent,  per  an- 
num  fi'om    October  1,   18s6.     The  defend- 
ants' amended  answer  thereto  and   cross- 
petition  alleged  that  the  flaxseed  for  which 
the  instrument   sued   on   was   given  was 
purchased    by   Smith,  for  the   juirpose   of 
sowing  it  and  raising  a  croi) ;  that  it  was 
warranted  by  the   plaintiffs    to   be  good, 
but     that     it    was    worthless:     that    he 
(Smith)  sowed  it,  but   tliat  it  did  not  ger- 
minate; and  that  he  lost  his   time,  labor, 


and  use  of  his  ground;  and  that  he  was 
damaged  thereby  in  the  sum  of  $150.  And 
he  asked  judgment  for  that  amount,  and 
costs  of  suit.  Tiie  trial  resulted  in  a  ver- 
dict in  favor  of  the  defendants  and  against 
the  plaintiffs  for  the  sum  of  $!K),  and  judg- 
ment was  rendered  accordingly ;  and  the 
plaintiffs,  as  plaintiffs  in  error,  bring  the 
case  to  this  court  for  review. 

It  appears  from   the  evidence   that   the 
facts   of  the  case  arc  substantially  as  fol- 
lows:    The   plaintiffs,  G.    B.  Shaw  &  Co., 
were  dealers  in  flaxseed    at  Cambridge,  in 
said  Cowley  county.     Smith  went  to  their 
l)lace  of  business  about  April  20,  1S86,  and 
found     Joseph     Fraley,     their    agent,     in 
charge.  Shaw  &  Co.  did  not  have  any  flax- 
seed on  hand,  but  they  were  about  to  or- 
der some.     Smith   told    Fraley   to    order 
eight  bushels  for  him,  for  the   purpose  of   . 
sowing  it  and  raising  a  crop.    Fraley  told 
Smith    that    they    would  furnish    the  flax- 
seed upon  the  conditions  substantially  as 
set  forth    in     the    foregoing    instrument. 
Afterwards  the  flaxseed  arrived,  and  Fra- 
ley gave  notice  to  Smith.     Smith  then,  on 
April  30,  ISSG,  went  to   Cambridge   and  re- 
ceived theseed,about8  busliels  in  amount,, 
inclosed  in    sacks,  from  Fraley,  and    took 
it  home  and  sowed  it  upon  about  12  acres 
of  ground.    The  seed  appeared  to  be  good, 
and  Fraley  and   Smith    believed'  it    to    be 
good,  but  in  fact  it  was  not  good,  and   it 
did  not   germinate;  and  Smith  lost  all  his 
time  and  labor  in  procuring  it,  and  in  pre- 
oaring  the  ground   for  sowing  it,  and    in 
sowing  it,  and   he  got  no   crop,  and    lost 
the   use  of   his  ground.     And    upon  these 
facts  the  jury  found  in  favor  of  the  defend- 
ants  and   against  tne  plaintiffs,  and   as- 
sessed the  defendants'  damages  at   $90,  as- 
aforesaid.     The    only   questitms    now   in- 
volved  in   the  case   are  as    follows:     (1) 
Under  the  contract  between    the   parties, 
and  under  the  circumstances  of   the  case, 
was  there   any  such    implied  warranty  on 
the  part  of  Shaw  &Co.,  respectingthesuffi- 
ciency  of  the  flaxseed   for  the   purposes  of 
sowing  it  and   raising  a  crop,  that   the 
plaintiffs  may  be  defeated   in    their  action 
on  the  aforesaid  written  instrument?     (2) 
If  so,  then    under  such  contract  and  war- 
ranty  and     circumstances,    may    the    de- 
fendants, Smith  and   McClellen,  or  rather 
Smith,  recoverdamages  for  Smith's  losses, 
necessarily   occasioned   by   reason   of  the 
worthlessness   of  the  flaxseed?     (3)  And, 
if  so,  then  what  is  the  measure  of  Smith's 
damages?      The  maxim  of  the  common*, 
law,  caveat  eiuptor,  is  the  general  rule  ap-'l 
plicable  to  purchasers  and  sales  of  person-  j 
al  property  so  far  as   the  quality  of   the  ! 
property  is  concerned;    and,  under  such  | 
maxim,  the  buyer,  in  the  al)sence  of  fraud,  ; 
purchases  at  his  own  risk,  unless  the  seller  i 
gives  him  an  express  warranty,  or  unless,    j 
from  the  circumstances  of  the  sale,  a  war-  | 
ranty  may  be  implied.    In  the  present  case   ' 
no  express  warranty  was  given,  and    the 
question   then    arises,  was   there  any  im- 
plied  wari-anty?     At  the  time  when   the 
contract   for  the  purchase  and  sale  of   the 
flaxseed  was  entered    into,  such    seed  was 
not  present  so  that  it  x-ould    be  inspected 
by    the  purchaser,  and,    when   it   arrived 
and    was   delivered  to   him,  the   defect   in 
the  seed  was  not  apparent,  and  was  prob- 
ably  not    discoverable   by   any   ordinary 


BREACH  OF  WARRANTY  OF  QUALITY. 


261 


means  of  inspection,  and  it  was  not  dis- 
covered until  after  it  was  sowed,  and  wlien 
it  failed  to  germinate.  Wlien  tlie  orijii'ial 
contract  for  tlie  purcliase  and  sale  of  the 
flaxseed  was  made,  tlie  flaxseed  was  pur- 
ciuised  and  sold  for  the  particular  pur- 
pose, known  to  both  the  bnyer  and  the 
seller,  of  sowing  it  in  a  lield.  and  of  rais- 
ing a  crop  from  it;  and  therefore  this  pur- 
pose was  a  part  of  the  contract,  and  de- 
manded that  the  seed  should  be  sufficient 
for  su(di  purpose.  It,  in  efleet,  constit^ut- 
sd  a  warranty  on  tlie  i)art  of  the  seller 
that  the  seed  should  be  the  kind  of  seed 
had  in  contemplation  by  both  the  parties 
when  the  contract  was  made.  The  par- 
chaser  had  to  rely  upon  the  seller's  fur- 
nishing to  him  the  kind  of  seed  agreed  up- 
on, and  the  sellei-,  in  effect,  agreed  that  the 
seed  furnished  should  be  the  kind  of  seed 
agreed  u[)on.  The  entire  contract  when 
made  was  executory,  and  it  was  to  be  ex- 
ecuted and  performed  afterwards,  and  to 
be  performed  in  parts  and  at  different 
times.-  The  seller  was  first  to  furnish  the 
seed,  and  he  did  so  in  about  10  days  after 
the  contract  was  made,  and  of  course  the 
seed  was  to  be  a  kind  of  seed  that  would 
grow\  The  purchaser  was  afterwards  to 
sow  it  and  to  raise  a  crop,  and  afterwards 
the  purchaser  was  to  sell,  and  the  seller 
was  to  buy,  the  crop,  upon  certain  terms 
and  conditions  expressed  in  the  contract. 
AVe  think  there  was  an  implied  wari-anty 
•on  the  part  of  the  seller  that   the  seed 


sliould  be  sufficient  for  the  purpose  for 
which  it  was  bought  and  sold.  Wolcott 
V.  Mount,  ;56  N.  J.  Law,  2(52,  :JS  N.  J.  Law, 
4tl(');  Van  Wyck  v.  Allen.  G9  N.  Y.61:  White 
V.Miller,?  Hun,  427,  71  N.  Y.  118:  Whit- 
aker  v.  McCormick,  6  Mo.  App.  114.  We 
also  think  that  the  purchaser  may  re- 
cover damages  from  the  seller  for  all  the 
losses  necessarily  sustained  by  the  pur- 
chaser, by  reason  of  the  wortlilessn.'ss  of 
the  flaxseed  furnished  by  the  si-llcr.  See 
the  autlioritif's  above  cited,  and  also  tlie 
following:  Passinger  v.  Thorburn,  34  N. 
Y.G:U;  Flick  v.  Wetherbee,  20  Wis.  ;W2; 
Ferris  v.  Comstock,  3:5  Conn.  r)i:j;  Randall 
v.  Raj)er,  El.,  Bl.  &  El.  84.  And  it  is  not 
claimed  that  the  purchaser  in  the  pres- 
ent case  recovered  for  more  than  the  fore- 
going losses.  The  claim  is  that  the  pur- 
chaser had  no  right  to  recover  at  all,  and 
that  the  seller  had  the  right  to  recover  on 
the  instrument  sued  on.  No  other  ques- 
tions are  presented.  We  think  no  materi- 
al error  was  committed  in  the  case,  and 
the  judgment  of  the  court  below  will  be 
affirmed.    All  the  justices  concurring. 

PER  CURIAM.  It  is  understood  that 
the  name  questions  of  law  and  fact  are  in- 
volved in  the  case  of  G.  B.  Shaw  &  Co.  v. 
T.  L.  Jones,  from  Cowley  district  court, 
that  are  involved  in  the  case  of  Shaw  v. 
Smith,  just  decided,  and  the  judgment  of 
the  court  below  in  this  case  will  be  af- 
firmed upon  the  authority  of  that  case. 


> 


(>- 


LjJ 


^.     l"^ 


2G2 


BrvEACH  OF  GONTRAOTS  RESPECTING  PERSONAL  PROPERTY. 


SHAWHAN  V.  VAN  NEST. 

(25  Ohio  St.  490.) 

Supreme  Court  of  Ohio.    December  Term,  1874. 

Molion  for  leave  to  file  a  petition  in 
error. 

Action  b3' Peter  Van  Nest  against  Reasin 
^^^  Munvlian  to  recover  on  a  contract  by 
wliicli  lie  at^reed  to  nuike  for  Shawhan  a 
carriage  in  accordance  with  liis  directions 
lor  !if7tH),  and  liave  tlie  same  ready  for  de- 
livery at  liis  shop  October  1,  ISTl,  in  con- 
sideration whereof  Shawhan  agreed  to  ac- 
cept tlie  carriaj2;e  at  the  shop  and  pay  the 
agreed  price.  He  allejjed  the  tender  of  the 
carriap:e  October  1st,  and  tlie  rel'n.sal  of 
Shawhan  to  accept  or  pay  for  it.  Tlie  ev- 
idence establisiied  the  alleviations  of  the 
complaint.  The  court  instructed  the  jury 
that,  if  they  found  the  issues  for  the 
plaintiff,  they  should  j^ive  him  a  verdict 
for  the  contract  price  of  the  carriage,  v\'ith 
interest  from  the  time  the  money  should 
have  been  paid.  Shawhan  requested  the 
court  to  give  to  the  jury  the  following 
special  instructions:  (1)  "If,  in  this  case, 
the  evidence  shows  that  the  defendant  or- 
dered the  plaintiff  to  make  for  him  a  car- 
riage, and  agreed  to  take  or  receive  it, 
when  finished,  at  the  plaintiff's  shop,  and 
to  pay  a  reasonable  jn'ice  therefor,  and 
the  plaintiff  did,  in  [lursuance  of  such  oi-- 
der  and  agreement,  make  such  carriage,  of 
the  value  of  seven  hundred  dollars,  and 
have  the  same  in  readiness  for  dellverj'  at 
liis  shop,  of  which  the  defendant  liad  no- 
tice, and  the  defendant  then  failed,  neg- 
lected, and  refused  to  take,  receive,  or  pay 
for  said  carriage,  though  requested  so  to 
do  by  the  plaintiff,  these  will  not  author- 
ize you  to  render  a  verdict  for  the  plain- 
tiff for  the  price  or  value  of  the  carriage. " 
(2)  "  If  the  plaintiff  has  proved  the  mak- 
ing of  the  carriage  for  the  defendant,  and 
the  refusal  of  the  latter  to  receive  and  pay 
for  it,  as  alleged  in  the  petition,  then  he 
can  only  recover  for  the  damages  or 
losses  he  has  actually  sustained  by  reason 
of  this  refusal  of  the  defendant,  which  is 
the  difference  between  the  agreed  price 
and  the  actual  value."  These  instruc- 
tions the  court  refused  to  give,  and  Shaw- 
han  excepted.  The  jury  found  for  Van 
Nest,  and  gave  liira  the  contract  price  of 
the  carriage,  with  interest. 

W.  P.  Noble,  for  plaintiff  in  error.  G.  E. 
Seney,  for  defendant  in  error. 

GILMORE,  J.  The  only  question  to  be 
detei-inined  in  this  case  is:  Did  the  court 
err  in  refusing  to  give  to  the  jury  the  spe- 
cial instructions  requested  by  the  defend- 
ant on  the  trial  below?  The  authorities 
cited  by  counsel  for  the  parties  respective- 
ly, are  not  in  harmony  with  each  other  on 
th^'s  qu<'STion.  Some  of  those  cited  by  the 
plaintiff  in  error  (defendant  below)  show 
clearly  that  under  the  pleadings  and  prac- 
tice at  common  law,  there  could  be  no 
recovery  under  the  common  counts  in 
assumpsit,  for  goods  sold  and  delivered, 
or  for  goods  bargained  and  sold,  where 
no  delivery  sufficient  to  pass  the  title  from 
the  vendor  to  the  vendee  had  been  made. 
And  further,  that  in  this  form   of  action, 


proof  of  a  tender  of  the  goods  by  the  ven- 
dor to  the  vendee,  or  leaving  them  with 
him  against  his  i*emonstraiice,  would  not 
constitute  such  a  delivery  as  would  i)asK 
the  title  and  enable  the  vendor  to  recover. 
While  these  may  be  regarded  as  settling 
the  rules  of  uleading  and  evidence  on  the 
trial  of  particular  cases,  and  therefore  not 
decisive  of  the  question  when  raised  under 
issues  sofornied  as  to  present  it  freed  from 
the  technicalities  of  pleading,  still  thereare 
other  cases  cited  on  the  same  side,  which 
declare  the  rule  to  be  as  follows;  Where 
an  actionis  brouglit  liy  the  vendor  against 
the  vendee,  for  refusing  to  receive  and  pay 
for  goods  purchased,  tin.'  measure  of  dam- 
ages is  the  actual  lo.->s  sustained  by  the 
vendor  in  consecjuence  of  the  vendee  refus- 
ing to  take  and  pay  ft)r  the  goods,  or,  in 
other  words,  the  difference  between  the 
contract  price  and  the  market  price  at  the 
time  and  place  of  delivery.  In  the  author- 
ities cited  by  the  plaintiff  in  error,  no  dis- 
tinction is  drawn,  or  attempted  to  be 
drawn,  between  the  sale  of  goo'ds  and 
chattels  already  in  existence,  and  an 
agreement  to  furnish  materials  and  man- 
ufacture a  specific  article  in  a  particular 
way, and  according  to  order,  which  is  not 
yet  in  existence;  the  theory  being,  that  in 
neither  case  would  the  title  pass,  or  prop- 
erty vest  in  the  purchaser,  until  there  liad 
been  an  actual  delivery,  and  that  until 
the  title  had  passed,  the  vendor's  remedy 
was  limited  to  the  damages  he  had  suf- 
fered by  reason  of  the  breach  of  the  con- 
tract by  the  vendee,  which  were  to  be 
measured  by  the  rule  above  stated.  In 
this  case  it  is  not  necessary  to  determine 
whether  or  not  a  distinction,  resting  upon 
principles  of  law,  can  be  drawn  between 
ordinary  sales  of  goods  in  existence  and 
on  the  market,  and  goods  made  to  order 
in  a  particular  way,  in  jmrsuance  of  a  con- 
tract between  the  vendor  and  vendee. 
The  case  here  is  of  the  latter  kind,  and  the 
(juestion  is,  whether  the  plaintiff  l>elow 
was  entitled  to  recover  the  contract  price 
of  the  carriage,  on  proving  that  he  had 
furnished  the  materials,  and  made  and 
tendered  it  in  pursuance  of  the  terras  of 
the  contract. 

Counsel  for  thedefendant  in  error  (plain- 
tiff below)  has  cited  a  numlier  of  authori- 
ties, in  which  the  questions  presented  and 
decided  arose  upon  facts  similar  to  those 
in  this  case,  and  upon  issues  presenting 
the  question  in  the  same  way;  and  as  the 
conclusions  we  have  arrived  at,  are  based 
upon  this  class  of  authorities,  some  of 
them  may  be  particularly  noticed. 

InBement  v.  Smith,  15  Wend.  493,  the  de- 
fendant employed  the  plaintiff,  a  carriage- 
maker,  to  build  a  sulky  for  him,  for  which 
he  promised  to  pay  eighty  dollars.  The 
jjlaintiff  made  the  sulky  according  to  con- 
tract, and  took  it  to  the  residence  of  the 
defendant,  and  told  him  he  delivered  it  to 
him,  and  demanded  payment,  in  pursu- 
ance of  the  teims  of  the  contract.  The 
defendant  refused  to  receive  it.  Whereuf)- 
on  the  plaintiff  told  him  he  would  leave  it 
with  Mr.  De  Wolf,  who  lived  near;  which 
he  did,  and  commenced  suit.  On  the  trial 
it  was  proved  the  sulky  was  wcirth  eighty 
dollars,  the  contract  price.  The  court 
charged  the  jury,  that    the   tender  of   the 


BREACH  OF  AGREEMENT  TO  TAKE  OR  BUY  GOODS. 


263 


carrifiKe  was  substantially  a  fulfillmont  (»[ 
the  contract  on  the  part  of  the  plaintiff, 
and  that  he  was  entitled  to  sustain  his 
action  for  the  price  a;;'ree(l  upon  l)etween 
the  parties.  The  defendant's  counsel  re- 
quested th?  court  to  charfj;e  tiie  jury  that 
the  measure  <jf  daina;;e.s  was  not  the 
sulky,  but  onh'  the  exix'use  of  talcing  it  to 
the  I'esidence  of  tlie  defendant,  delay,  loss 
of  sale,  etc.  The  .iudy;e  declined  to  so 
ciiarge.and  reiterated  the  instruction  that 
the  value  of  tiie  article  was  the  measure  of 
dama/j;es.  The  jury  found  for  the  plain- 
tiff, with  eighty-three  dollars  and  twenty- 
six  cents  d, images,  being  the  contract 
price  with  interest.  Tiie  charge  to  the 
jury  was  sustained  by  the  supreme  court 
of  New  York. 

In  Ballentine  et  al.  v.  Robinson  et  al., 
4()  Penn.  St.  177,  an  agreement  was  made 
between  the  plain  riffs  and  defendants, 
whei-ehy  the  plaintiffs  were  to  provide 
luaterials,  and  construct  for  the  defend- 
ants a  si.x-iuch  steam-engine,  with  boiler 
and  Gifford  injector  aiul  heater,  in  consid 
eration  whereof  the  defendants  were  to 
pay  plaintiffs  five  hundred  and  thirty-five 
dollars  in  casi»  on  the  completion  thereof. 
The  plaintiffs  complied  with  and  complet- 
ed the  contract  in  all  respects  on  their 
part,  but  the  defendants  refused  to  pay 
according  to  contract.  On  the  trial,  the 
plaintiffs  proved  the  contract,  and  tlie  per- 
formance of  it  on  their  part,  and  that  the 
engine  was  still  in  their  hands. 

The  defendants'  counsel  asked  the  court 
to  instrnctthejurj' "  tha  t  the  proper  meas- 
ure of  damages  in  this  case  is  the(h"fference 
between  the  price  contracted  to  be  paid 
for  the  engine  and  the  market  price  at  the 
time  the  contract  was  bioken."  The 
court  declined  to  charge  as  requested,  and 
instructed  the  jury  that  the  measure  of 
damages  was  the  contract  price  of  the 
engine,  with  interest.  There  was  a  ver- 
dict for  the  plaintiffs  for  the  contract 
price.  The  case  was  taken  to  the  supreme 
court,  and  the  error  assigned  was  the  re- 
fusal of  the  court  to  give  the  instructions 
requested  by  the  defendant. 

The  supreme  court  affirmed  the  judg- 
ment in  the  case  below,  it  will  be  seen 
that  these  cases  are  very  similar,  and  pre- 
sented the  same  question,  and  in  the  same 
manner  that  the  question  is  presented  in 
this  case.  Graham  v.  Jackson,  14  East, 
498,  decides  the  point  in  the  same  way. 
Air.  Sedgwick,  in  his  work  on  Damages, 
side  page  :280,  in  sjieaking  on  this  subject. 
says:  *' Wliere  a  vendee  is  sued  for  non- 
performance of  the  contract  on  his  part, 
in  not  paying  the  contract  price,  if  the 
goods  have  been  delivered,  the  measure  of 
damages  is  of  course  the  price  named  in 
the  agreement;  but  if  tiieir  possession  has 
not  been  clianged,  it  has  been  doubted 
whether  the  rule  of  damages  is  the  price 
itself,  or  onlj'  the  difference  between  the 
contract  price  and  the  value  of  the  article 
at  the  time  fixed  for  its  delivery.  It  seems 
to  be  well  settled  in  such  cases  that  the 
vendor  can  resell  them,  if  he  sees  fit,  and 
charge  the  vendee  with  the  difference  be- 
tween tlie  contract  price  and  that  realized 
at  the  sale.  Though  perhaps  more  pru- 
dent it  is  not  necessary  that  the  sale 
should  be  at  auction;  it   is   only  requisite 


to  sliow  that  the  property  was  sold  for  a 
fair  i)rice.  But  if  the  vendor  does  not  pur- 
sue this  course,  and,  with(jut  reselling  the 
goods,  sues  the  vendee  for  liis  lireach  of 
contract,  the  question  arises  -which  we 
have  already  stated,  whether  the  vendor 
can  recover  the  contract  price,  tjr  only 
the  difference  between  that  price  and  the 
value  ofths  goods  which  remain  in  the 
vendor's  hands;  and  the  rule  api)ears  to 
be  that  the  vendor  can  recover  the  con- 
tract price  in  full." 

In  iiadly  v.  Pugh  et  al.,  Wright,  .554,  the 
action  was"assumpsit  on  a  written  agree- 
ment between  the  parties,  for  the  defend- 
ants to  take  all  the  salt  the  plaintiff  man- 
ufactured between  the  I'd  of  Jnne,  1S31, 
and  the  1st  of  January,  1S32,  to  be  deliv- 
ered at  the  landing  in  Cincinnati,  from 
time  to  time,  as  the  navigation  of  the 
Muskingum  and  Ohio  should  permit,  and 
to  pay  forty-five  cents  a  bushel."  The 
plaintiff  proved  the  agreement,  and  the 
offer  to  deliver  to  the  defendants  three 
hnndred  and  fifty  barrels  of  salt,  which 
the  defendants  refused  to  receive.  There 
was  an  issue  in  the  case,  as  to  wiiether  the 
contract  had  been  previously  fulfilled  and 
abandoned  by  the  parties.  The  court 
(Lane,  J.)  charged  the  jury  that  if  the 
contract  had  not  been  "fultilled  or  aban- 
doned, and  the  plaintiff  tendered  the  salt 
under  the  contract,  which  was  refused,  he 
had  a  right  to  leave  it  for  the  defendants 
and  recover  the  value." 

The  only  case  I  have  examined  in  which 
the  authorities  on  this  point  are  reviewed, 
is  that  of  Gordon  v.  Norris,  49  N.  H.  37(;. 
The  case  is  too  lengthy  and  complicated 
to  attemi)t  to  give  an  abstract  of  it  here, 
but  the  point  under  consideration  was  in- 
volved; and  although  the  learned  judge 
criticises  the  law  as  laid  down  by  Mr. 
Sedgwick,  and  even  shows  that  the  au- 
tliorities  ho  quotes  in  support  of  his  posi 
tion  do  not  sustain  him,  for  the  reason 
pointed  out,  yet  he  says  that  there  is  a 
distinction  betv/een  the  case  of  Bernent 
V.  Smith,  and  the  ordinary  cases  of  goods 
sold  and  delivered — viz.,  "the  distinction 
between  a  contract  to  sell  goods  then  in 
existence,  and  an  agreement  to  furnish 
materials  and  manufacture  an  article  in  a 
particular  way  and  according  to  order, 
which  is  not  yet  in  existence."  He  recog- 
nizes Benient's'^'ase  and  others  of  the  same 
class  as  exceptions  to  the  general  rule 
which  is  to  be  applied  in  the  sale  of  ordi- 
nary goods  and  merchandise  which  have 
a  fixed  market  value;  and  in  the  syllabus 
of  the  ease,  the  distinction  is  kept  up  and 
stated  as  follows : 

"  When  the  vendee  refuses  to  receive  and 
])ay  for  ordinary  goods,  wares,  and  mer- 
chandise, which  he  has  contracted  to  pur- 
chase, the  measure  of  daniages  which  the 
vendor  is  en  titled  to  reco\er  is  not  ordi- 
narily the  contract  price  for  the  goods, 
bnt  the  difference  between  the  contract 
price  and  the  market  price  or  value  of  the 
same  goods  at  the  time  when  the  contract 
was  broken. 

"But  when  an  artist  prepares  a  statue 
or  picture  of  a  particular  person  to  order, 
or  a  mechanic  makes  a  specific  article  in 
his  line  to  order,  and  after  a  particular 
measure,  pattern,  or  style,  or  for  a  partic- 


264 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


ular  use  or  purpose— when  ho  han  fully 
perfoniied  his  pai-t  of  the  contract,  ami 
tendered  or  offered  Jo  deliver  the  article 
thus  manufactured  according-  to  contract, 
and  tile  vendee  refuses  to  receive  and  pay 
for  the  same,  he  may  recover  as  damages, 
in  an  action  ap:ainst  the  vendee  for  orcach 
■of  tlie  contract,  tiie  full  contract  price  of 
the  manufactured  article." 

As  has  been  said,  we  are  not  called  upon 
now  to  determine  whetiicr  the  distinction 
as  drawn  in  tiie  clauses  quoted,  is  sound 
on  princi])leor  not;  but  betiiat  as  it  may, 
we  recognize  the  law  applicable  to  the 
case  before  us  as  being  correctly  stated  in 
the  clause  last  qiioted. 

Judge  Swan,  in  his  excellent  "Treatise," 
(lOtli  ed.  7n0),  in  speaking  of  the  effects  of 
a  tender  upt)n  the  rights  of  the  buyer  and 
seller,  and  of  the  damages  in  such  case, 
«ays.  "The  general  rule  in  relation  to  the 
rights  of  a  seller,  under  a  contract  of  sale, 
where  he  has  tendered  the  property,  and 
the  buyer  refuses  to  receive  it,  is  this  :  The 
seller  may  leave  the  property  at  some  se- 
cure place,  at  or  near  the  place  where  the 
tender  ought  to  be  and  is  made,  and  re- 
cover the  contract  price ;  or  he  may  keep 
it  at  the  buyer's  risk,  using  reasonable  dil- 
igence to  preserve  it,  and  recover  the  con- 
tract price  and  exi)enses  of  preserving  and 
keeping  it;  or  he  may  sell  it,  and  recover 
from  the  buyer  the  difference  between  the 
conti-act  price  and  the  pi'ice  at  which  it 
fairly  sold."  The  rule  as  thus  laid  down 
was  first  published  in  ls:j6,two  years  after 
the  decision  in  Hadly's  Case,  above  re- 
ferred to,  which  was  substantially  fol- 
lowed by  Judge  Swan  in  laying  it  down. 
It  does  not  appear  that  either  the  decision 


or  the  rule  as  laid  down  has  ever  been 
questioned  in  Ohio.  It  will  be  perceived 
that  Judge  Swan  lays  down  the  rule  gen- 
erally as  applicable  to  all  sales  of  clisttels 
in  the  ordinary  course  of  trade,  without 
intimating  any  such  distinction  as  that 
drawn  in  (Joi'don  v.  Norris.  We  sanction 
and  apply  the  rule  in  the  determination  of 
the  particular  case  l)efore  us.  When  tlie 
plaintiff  below  had  completed  and  ten- 
dered the  carriage  in  stiict  performance  of 
the  contract  on  his  part,  if  the  d"fendant 
below  had  accepted  it,  as  he  agreed  to  do, 
there  is  no  question  but  that  he  would 
have  been  liable  to  pay  the  full  contract 
price  for  it,  and  he  can  not  be  poruiitted 
to  place  the  plaintiff  in  a  worse  condition 
by  breaking  than  by  performing  the  con- 
tract according  to  its  terms  on  liis  part. 
When  the  plaintiff  !)ad  completed  and  ten- 
dered the  carriage  in  full  performance  of 
the  contract  on  his  part,  and  the  defend- 
ant refused  to  accept  it,  he  had  the  right 
to  keep  it  at  the  defendant's  risk,  using 
reasonable  diligence  to  preserve  it,  and 
recover  the  contract  price,  with  interest, 
as  damages  for  the  breach  of  the  contract 
by  the  defendant.  Or,  at  his  election,  h^ 
could  have  sold  the  carriage  for  what  it 
would  have  brought  at  a  fair  sale,  and 
have  recovered  froni  the  defendant  the 
difference  between  the  contract  price  and 
what  it  sold  for. 

The  court  below  did  not  err  in  refusing 
to  give  to  the  jury  the  special  instructions 
requested  by  the  defendant  below. 

Motion  overruled. 

McILVAINE.  C.  J.,  and  WELCH, 
WHITE,  and  HEX,  JJ.,  concurred. 


BREACH  OF  AGKEBMENT  TO  TAKE  OR  BUY  GOODS. 


2(J5 


KADISH  et  al.  v.  YOUNG  ot  al.i 

(108  111.  170.) 

Supreme  Court  of  Illinois.     Nov.  20,  1883. 

Appeal  from  appellate  court,  First  district. 

This  was  an  action  of  assumpsit,  by  A.  N. 
Y'ounc:  and  (ieorge  Bulleu  against  I^.  J.  Ka- 
dish  and  Charles  Fleischman.  .Indgmont  for 
plaintiffs  for  ^L'O.OOU.  Defendants  appeal. 
Afflrnied. 

John  Woodbridge  and  Mr.  Francis  Lackner, 
for  appellant  Kadish.  Iloadley,  Johnson  & 
Colson,  for  appellant  Fleischnuin.  AVilllam 
A.  Montgomery,  for  appellees. 

SCHOLFIELD,  J.  This  was  assumpsit, 
by  appellees,  against  appellants,  to  recover 
damages  sustained  by  the  breach  of  an  al- 
leged contract,  whereby,  on  the  15th  of  De- 
cember, 1880,  appellees  sold  to  appellants  100,- 
000  bushels  of  No.  2  barley,  at  one  dollar  and 
twenty  cents  per  bushel,  to  be  delivere'd  to  ap- 
pellants, and  paid  for  by  them,  at  such  time 
during  the  month  of  January,  1881,  as  appel- 
lees should  elect.  Appellees  tendered  to  ap- 
pellants warehouse  receipts  for  100,000  bush- 
els of  No.  2  barley  on  the  12th  of  January, 
1881,  but  appellants  refused  to  receive  the 
receipts  and  pay  for  the  barley.  Within  a 
reasonable  time  thereafter  appellees  sold  the 
barley  upon  the  market,  and  having  credited 
appellants  with  the  proceeds  thereof,  they 
brought  this  suit,  and  on  the  trial  in  the  cir- 
cuit court  they  recovered  the  difference  be- 
tween the  contract  price  and  the  value  of  the 
barley  in  the  market  on  the  day  it  was  to 
have  been  delivered  by  the  terms  of  the  con- 
tract. Upon  the  trial  appellants  denied  the 
making  of  the  alleged  contract,  that  they  were 
partners,  or  that  any  purchase  of  the  barley 
was  made  for  their  joint  account;  and  they 
also  contended,  if  a  contract  was  shown,  then 
that  on  the  next  day  after  it  was  made  they 
gave  notice  to  appellees  that  they  did  not 
consider  themselves  bound  by  the  contract, 
and  they  would  not  comply  with  its  terms, 
and  evidence  was  given  tending  to  sustain 
this  contention. 

The  questions  of  law  to  which  our  attention 
has  been  directed  by  the  arguments  of  coun- 
sel, arise  upon  the  rulings  of  the  circuit  judge 
in  giving  and  refusing  instructions.  He  thus 
ruled,  among  other  things,  that  appellants, 
by  giving  notice  to  appellees  on  the  next  day 
after  the  making  of  the  contract  that  they 
would  not  receive  the  barley  and  comply  with 
the  terms  of  the  contract,  did  not  create  a 
breach  of  such  contract  which  appellees  were 
bound  to  regard,  or  impose  upon  them  the 
legal  obligation  to  resell  the  barley  on  the 
market,  or  make  a  forward  contract  for  the 
purchase  of  other  barley  of  like  amount  and 
time  of   delivery,   within   a   reasonable   time 

1  Portiou  of  opiulon  omitted. 


thereafter,  and  credit  appellants  with  the 
amount  of  such  sale,  or  give  them  the  benefit 
of  such  forward  contract,  but  tlxat  appellees 
had  Uie  legal  right,  notwithstanding  such  no- 
tice, to  wait  until  the  day  for  the  delivery  of 
the  barley  by  the  terms  of  the  contract, 
and  then,  upon  appellants'  failure  to  receive 
and  pay  for  it  on  its  being  tendered,  to  resell 
it  on  the  market,  and  recover  from  appellants 
the  difference  between  the  contract  price  of 
the  barley  and  its  market  value  on  the  day 
it  was  to  have  been  delivered. 

That  in  ordinary  cases  of  contract  of  sale 
of  personal  property  for  future  delivery,  and 
failure  to  receive  and  pay  for  it  at  the  stipu- 
lated  time,   the  measure  of  damages   is  the 
difference  between  the  contract  price  and  the 
market  or  current  value  of  the  property  at 
the  time  and  place  of  delivery,  has  been  set- 
tled by  previous  decisions  of  this  court  (see 
McNaught   V.  Dodson.  49  111.  446;    Larrabee 
V.  Badger,  45  111.  440,  and  Saladin  v.  Mitch- 
ell, Id.  79),  and  is  not  contested  by  appellant's 
counsel.     But  their  contention  is,  that  in  case 
of  such  contract  of  sale  for  future  delivery, 
where,  before  the  time  of  delivery,  the  buyer 
gives  the  seller  notice  that  he  will  not  receive 
the  property  and  comply  with  the  terms  of 
the  contract,  this,  whether  the  seller  assents 
thereto  or  not,  creates  a  breach  of  the  con- 
tract,   or,    at   all   events,    imposes    the   legal 
duty   on   the   seller   to   thereafter   take   such 
steps  with  reference  to  the  subject  of  the  con- 
tract, as,   by  at  once  reselling  the  property 
on  the  market  on  account   of  the  buyer,   or 
making  a  forward  contract  for  the  purchase 
of  other  property  of  like  amount  and  time  of 
delivery,    shall  most  effectually  mitigate   the 
damages  to  be  paid  by  the  buyer  in  conse- 
quence of  the  breach,  without  imposing  loss 
upon  the  seller.     If  the  buyer  may  thus  create 
a  breach  of  the  contract  without  the  consent 
of  the  seller,  we  doubt  not  the  duty  to  sell, 
(where  the  property  is  in  the  possession  of  the 
seller  at  the  time,)  at  least  within  a  reason- 
able time  after  such  breach,  will  result  as  a 
necessary  consequence  of  the  breach.     When 
the  breach  occurs  by  a  failure  to  accept  and 
pay   for   property   tendered    pursuant   to    the 
terms  of  a  contract  at  the  day  specified  for  its 
delivery,    this    is   doubtless   the   duty    of    the 
seller,  and  no  reason  is  now  perceived  why  it 
should  not  equally  result  from  any  breach  of 
the  contract  upon  which  the  seller  is  legally 
bound  to  act. 

But  the  well  settled  doctrine  of  the  English 
courts  is.  that  a  buyer  can  not  thus  create  a 
breach  of  contract  upon  which  the  seller  is 
bound  to  act.  In  Leigh  v.  Paterson.  8  Taunt. 
540.  Phillpotts  V.  Evans.  5  Mees.  &  W.  475, 
Ripley  v.  McClure,  4  Exch.  .359.  and,  it  may- 
be, also  in  other  early  cases,  it  was  held  a 
party  to  a  contract  to  be  performed  in  the 
future  can  not.  by  merely  giving  notice  to 
the  opposite  party  that  he  will  not  perform 
his  part  of  the  contract,  create  a  breach  of 
the  contract.  Subsequently,  however,  in 
Cort  V.  Railway  Co.,  6  Eng.  Law  &  Eq.  230, 


266 


BREACH  OF  CONTEACTS  RESPECTING  PERSONAL  PROPERTY. 


and  more  explicitly  in  Hocbster  v.  De  Latour, 
20  Eng.  Law  &  Eq.  157,  the  doctrine  was  an- 
nounced as  .not  in  conflict  with  previous  de- 
cisions, that  the  party  to  whom  notice  is  giv- 
mi  in  such  cases  will  be  justified  in  acting 
upon  the  notice,  provided  it  is  not  withdrawn 
before  he  acts.  Lord  Campbell,  C.  J.,  in  de- 
livering his  opinion  in  the  latter  case,  and 
spealciug  for  the  court,  used  this  language: 
'•The  man  who  wrongfully  renounces  a  con- 
tract into  which  he  has  deliberately  entered, 
can  not  justly  complain  if  he  is  immediately 
sued  for  a  compensation  in  damages  by  the 
man  whom  he  has  injured,  and  it  seems  rea- 
sonable to  allow  an  option  to  the  injured 
party  either  to  sue  immediately  or  to  wait  till 
the  time  when  the  act  was  to  be  done,  still 
holding  it  as  prospectively  binding  for  the 
exercise  of  this  option,  which  may  be  advan- 
tageous to  the  innocent  party,  and  can  not  be 
prejudicial  to  the  wrong-doer." 

The  leading  text-writers  who  treat  of  this 
question  follow  the  authority  of  these  cases, 
and  the  rule  they  announce  is  thus  expressed 
in  Sedg.  Meas.  Dam.  (6th  Ed.)  340,  *284: 
"An  effort  has  been  made  in  many  cases  by 
the  purchaser  to  relieve  himself  from  the 
conti-act  of  sale  before  the  time  fixed  for  per- 
formance by  giving  notice  that  he  would  not 
be  ready  to  complete  the  agreement,  and  in 
these  cases  it  has  been  insisted  that  the  dam- 
ages should  be  estimated  as  at  the  time  of 
giving  notice;  but  the  English  courts  have 
justly  denied  the  right  of  either  party  to  re- 
scind the  agreement,  and  hajre  adhered  to  the 
day  of  the  breach  as  the  period  for  estimat- 
ing damages."  To  like  effect,  see  Chit.  Cent. 
(11th  Am.  Ed.)  1079;  2  Pars.  Cent.  (6th  Ed.) 
676;  Benj.  Sales  (1st  Ed.)  559;  Id.  (4th  Am. 
Ed.)  973;  Add.  Cont.  *952;  Wood,  Mayne, 
Dam.  250,  *150. 

The  question  came  before  this  court  in  Fox 
V.  Kitton,  19  111.  519,  whether,  when  a  party 
agrees  to  do  an  act  at  a  future  day,  and  be- 
fore the  day  arrives  he  declares  he  will  not 
keep  his  contract  or  do  the  act,  the  other 
party  may  act  on  such  declaration,  and  bring 
an  action  before  the  day  arrives;  and  it  was 
held,  on  the  authority  of  Phillpotts  v.  Evans, 
and  Hochster  v.  De  Latour,  supra,  that  he 
may;  and  in  that  case  it  is  said,  in  the  opin- 
ion of  the  court,  that  there  is  no  conflict  in 
the  cases  referred  to  by  counsel  in  the  dis- 
cussion thereof,  and  to  prove  it,  this  language 
from  the  opinion  of  Parke,  Baron,  in  Phill- 
potts V.  Evans,  is  quoted:  "The  notice  (that 
he  will  not  receive  the  wheat)  amounts  to 
nothing  until  the  lime  v»'hen  the  buyer  ought 
to  receive  the  goods,  unless  the  seller  acts  on 
it  in  the  meantime;  and  rescinds  the  con- 
tract." And  it  is  then  added:  "This  is  in 
strict  accordance  with  the  principles  recog- 
nized in  the  leading  case  relied  on  by  the 
plaintiff.— Hochster  v.  De  Latour." 

In  ?>IcPlierson  v.  Walker,  40  111.  371,  the 
question  before  the  court  was.  whether  it  was 
error  to  say  in  an  instruction  that  where  there 
is  a  contract  for  the  sale  of  property  to  be 


delivered  in  the  future,  a  tender  or  offer  of 
the  property  by  the  seller  on  the  day  of  de- 
livery is  excused  by  a  previous  notice  of  the 
buyer  that  he  Avould  not  accept  the  property, 
and  it  was  held  that  it  was.  In  the  opinion 
of  the  court  it  is  said:  "The  rule  is,  if  one 
bound  to  perform  a  future  act,  before  the 
time  for  doing  it  declares  his  intention  not  to 
do  it,  this,  of  itself,  is  no  breach  of  his  con- 
tract; but  if  this  declaration  be  not  with- 
drawn, when  the  time  arrives  for  the  act  to 
be  done  it  constitutes  a  sufficient  excuse  for 
the  default  of  the  other  partj^"— referring  to 
2  Pars.  Cont.  1S8,  Hochster  v.  De  Latour,  su- 
pra, and  Crist  v.  Armour,  34  Barb.  378. 

In  Chamber  of  Commerce  v,  SoUitt,  43  111. 
519,  the  character  of  question  is  the  same  as- 
in  the  two  preceding  cases  to  which  we  have 
just  referred,  and  it  was  decided  the  same 
way.  Cort  v.  Railway  Co..  supra,  Hochster 
V.  De  Latoui*,  supra,  and  Fox  v.  Kitton,  su- 
pra, are  referred  to  as  sustaining  the  deci- 
sion. 

In  Cummings  v.  Tilton,  44  111.  173,  one  of 
the  points  decided  was,  if  the  party  who  is 
to  receive  informs  the  party  who  is  to  deliver 
that  he  can  not  pay  the  money,  the  latter  is. 
excused  from  offering  to  deliver, — but  there 
is  no  discussion  of  the  question. 

Follausbee  v.  Adams,  86  111.  13,  involved  the 
same  question  as  that  decided  in  Fox  v.  Kit- 
ton, supra,  and  on  the  authority  of  that  case, 
and  Chamber  of  Commerce  v.  SoUitt,  supra, 
it  was  decided  the  same  way. 

While  it  is  true  in  none  of  these  cases  was 
the  question  whether  one  party  to  a  contract 
may,  by  only  a  notice  of  his  intention  not  to 
comply  with  its  terms,  create  a  breach  of  the 
contract,  before  the  court,  still,  in  all  of  them 
it  is  assumed  that  he  can  not,  for  if  he  could, 
the  questions  they  decide  would  have  beeu 
immaterial,  and  the  English  cases  which  they 
profess  to  follow,  as  has  been  seen,  expressly 
hold  that  he  can  not. 

But  counsel  insist  this  court  has  held  the 
contrary  in  Gale  v.  Dean,  20  111.  320,  and  in 
Trustees  v.  Shaffer,  63  111.  244.  This  is  a 
misapprehension.  Neither  case  professes  ta 
discuss  the  question  before  us,  and  no  notice 
is  taken  in  either  of  the  decisions  or  dicta  ta 
which  we  have  above  referred.  In  Gale  v. 
Dean  no  time  was  fixed  by  the  terms  of  the 
contract  for  its  performance,  and  in  view  of 
this  omission  the  court  held  it  reasonable  that 
after  the  lapse  of  a  reasonable  time  either 
party  might  declare  a  breach  of  the  con- 
tract, if  not  performed;  and  it  was  in  refer- 
ence to  this  omission  and  these  reciprocal 
rights  of  the  parties  under  the  contract,  sole- 
ly, that  the  court  used  the  language  quoted 
and-  relied  upon  by  counsel  for  appellants, 
namely,  that  "we  do  not  think  that  Gale, 
when  he  found  he  could  not  perform,  was 
absolutely  at  the  mercy  of  Dean  for  the  de- 
termination of  the  time  when  his  liability 
should  be  fixed  and  the  measure  of  that  lia- 
bility determined."  It  had  not  the  slightest 
reference  to  the  character  of  question  now 


BREACH  OF  AGREEMENT  TO  TAKE  OK  BUY  GOODS. 


267 


before  us.  In  the  other  case,  Trustees  y. 
Shaffer,  the  time  for  the  performance  of  the 
contract  had  arrived.  There  was  no  ques- 
tion in  that  respect.  If  the  plaintiff  was  im- 
properlj^  discharged,  there  was  a  clear  breach 
of  the  contract.  There  was  no  controversy 
in  regard  to  the  question  whether  one  party 
to  a  conti'act  to  be  performed  in  the  future, 
can,  by  a  mere  notice  in  advance  of  the  time 
of  performance  that  he  does  not  intend  to 
perform,  create  a  breach  of  the  contract;  nor 
was  there  any  question  as  to  what  acts  a 
party  may  be  required  to  do  in  advance  of  a 
breach  of  contract  to  mitigate  the  damages 
of  the  adverse  party,  because  of  notice  that 
there  would  be  a  breach  by  him.  After 
breach  of  a  contract,  as  before  herein  inti- 
mated, we  do  not,  at  present,  question  that  it 
is  the  duty  of  the  party  entitled  to  damages 
to  do  what  he  reasonably  may,  without  prej- 
udice to  his  rights,  to  lighten  the  burden  fall- 
ing on  his  adversary. 

There  is  nothing  in  the  more  recent  English 
cases,  as  we  understand  them,  repugnant  to 
those  to  which  we  have  referred  upon  this 
question. 

In  Frost  v.  Knight,^  L.  R.  7  Exeh.  Ill,  1 
Moak,  Eng.  R.  218,  decided  in  the  exchequer 
chamber  in  February,  1872,  the  suit  was  for 
breach  of  a  marriage  contract,  whereby  the 
defendant  had  promised  to  marry  the  plain- 
tiff upon  the  death  of  his  father,  but  the 
father  still  living,  the  defendant  had  an- 
nounced his  intention  of  not  fulfilling  his 
promise  on  his  father's  death,  and  broke  off 
the  engagement.  Cockburn,  C.  J.,  in  deliv- 
ering the  opinion  of  the  court,  thus  states 
the  law,  after  referring  to  the  previous  deci- 
sions: "The  promisee,  if  he  pleases,  may- 
treat  the  notice  of  intention  [i.  e.,  not  to  per- 
form the  contract]  as  inoperative,  and  await 
the  time  when  the  contract  is  to  be  executed, 
and  then  hold  the  other  party  responsible  for 
all  the  consequences  of  non-performance;  but 
in  that  case  he  keeps  the  contract  alive  for 
the  benefit  of  the  other  party  as  well  as  his 
own.  He  remains  subject  to  all  his  own  ob- 
ligations and  liabilities  under  it,  and  enables 
the  other  party  not  oniy  to  complete  the  con- 
tract, if  so  advised,  notwithstanding  his  pre- 
vious repudiation  of  it,  but  also  to  take  ad- 
vantage of  any  supervening  circumstances 
which  would  justify  him  in  declining  to  com- 
plete it.  On  the  other  hand,  the  promisee 
may,  if  he  thinks  proper, treat  the  repudiation 
of  the  other  party  as  a  wrongful  putting  an 
end  to  the  contract,  and  may  at  once  bring 
his  action  as  on  a  breach  of  it,  and  in  such 
action  he  will  be  entitled  to  such  damages 
as  would  have  arisen  from  the  non-perform- 
ance of  the  contract  at  the  proper  time,  sub- 
ject, however,  to  abatement  in  respect  of  any 
circumstance  which  may  have  afforded  him 
the  means  of  mitigating  his  loss."  This  was 
followed,  and  its  doctrine  reiterated,  in 
Brown  v.  Muller,  L.  R.  7  Exeh.  319,  3  Moak, 
Eng.  R.  429,  decided  in  the  court  of  exchequer^ 
in  June,  1872,  and  Roper  v.  Johnson,  L.  R.  s' 


C.  P.  167,  4  Moak,  Eng.  R.  397,  decided  in 
the  common  pleas  In  February,  1873. 

Counsel  for  appellants  refer  to  the  fact  that 
Keating,  J.,  iu  Roper  v.  Johnson,  says:  "If 
there  had  been  any  fall  in  the  market,  or  any 
other  circumstances  calculated  to  diminish 
the  loss,  it  would  be  for  defendant  to  show 
it,"— and  then  cites  with  approval  from  the 
opinion  of  Cockburn,  C.  J.,  in  Frost  v.  Knight, 
supra,  to  the  effect  that  "the  damages  are 
subject  to  abatement  in  respect  of  any  cir- 
cumstances which  would  entitle  him  to  a 
mitigation,"  etc.,  and  insist  they  recognize 
the  duty,  here,  of  appellees,  upon  receiving 
notice,  etc.,  to  have  sold  rpon  the  market  oi' 
have  entered  into  another  contract  for  Jan- 
uary delivery,  etc.  It  is  enough  to  observe- 
in  answer  to  this,  that  in  both  Frost  v. 
Knight  and  Roper  v.  Johnson,  supra,  the  no- 
tice that  defendant  would  not  comply  with 
the  contract  was  accepted  and  acted  upon 
by  the  plaintiff  as  a  breach  of  the  contract; 
and  so  what  was  said  in  respect  of  the  duty 
of  the  plaintiff  to  mitigate  damages  was  said 
with  reference  to  a  case  wherein  he  recog- 
nized the  contract  as  having  been  broken  by 
the  notice  of  the  adverse  party,  and  with 
reference  to  what  was  to  be  done  by  him 
upon  and  after  the  recognition  of  that  breach, 
and  hence  can  have  no  application  here.  If 
a  party  is  not  compelled  to  accept  the  declara- 
tions of  the  other  party  to  a  contract  that  he 
will  not  perform  it,  as  a  breach,  it  must 
logically  follow  that  he  is  under  no  obligation 
to  regard  that  declaration  for  any  piu'pose, 
for,  as  we  have  seen,  the  theory  in  such  case, 
as  laid  down  by  Cockburn,  C.  J.,  in  Frost  v. 
Knight,  supra,  is:  "He  keeps  the  contract 
alive  for  the  benefit  of  the  other  party  as 
well  as  his  own.  He  remains  subject  to  all 
his  own  obligations  and  liabilities  under  it, 
and  enables  the  other  party  not  only  to  com- 
plete the  contract,  if  so  advised,  notwith- 
standing his  previous  repudiation  of  it.  but 
also  to  take  advantage  of  any  supervening 
circumstance  Avhich  would  justify  him  in  de- 
clining to  complete  it." 

Nothing  would  seem  to  be  plainer  than  that 
while  the  contract  is  still  subsisting  and  un- 
broken, the  parties  can  only  be  compelled  to 
do  that  which  its  terms  require.  This  con- 
tract imposed  no  duty  upon  appellees  to 
make  other  contracts  for  January  delivery, 
or  to  sell  barley  in  December,  to  protect  ap- 
pellants from  loss.  It  did  not  even  contem- 
plate that  appellees  should  have  the  barley 
ready  for  delivery  until  such  time  in  .Jan- 
uary as  they  should  elect.  If  appellees  had 
then  the  barley  on  hand,  and  had  acted  upon 
appellants'  notice,  and  accepted  and  treated 
the  contract  as  then  broken,  it  would,  doubt- 
less, then  have  been  their  duty  to  have  resold 
the  barley  upon  the  market,  precisely  as  they 
did  iu  January,  and  nave  given  appellants 
credit  for  the  proceeds  of  the  sale;  but  it  is. 
obviously  absurd  to  assume  that  it  could 
have  been  appellees'  duty  to  have  sold  barlej^ 
in  December  to  other  parties  which  it  was 


268 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


their  duty  to  deliver  to  appellants,  and  which 
appellants  had  a  legal  right  to  accept  in  Jan- 
uary. 

We  have  been  referred  to  Dillon  v.  Ander- 
son, 43  N.  y.  232,  Danforth  v.  Walker,  37 
Yt.  240,  and  same  case  again  in  40  Vt.  357, 
and  Collins  v.  Delaporte,  115  Mass.  159,  as 
recognizing  the  right  of  either  party  to  a  con- 
tract to  create  a  breach  of  it  obligatory  upon 
the  other  party,  by  giving  notice,  in  advance 
of  the  time  for  the  commencement  of  the  per- 
formance of  the  contract,  that  he  will  not 
comply  with  its  terms.  An  examination  of 
the  cases  will  disclose  that  they  do  not  go  so 
far,  but  that  they  are  entirely  in  harmony 
with  what  we  have  heretofore  indicated  is 
our  opinion  in  respect  of  the  law  applicable 
to  the  present  question. 

In  Dillon  v.  Anderson,  the  action  was  for  a 
breach  of  contract  for  tlie  construction  of  a 
pair  of  boilers  for  a  steamboat.  After  work 
had  been  commenced  under  the  contract,  and 
a  certain  amount  of  material  had  been  pur- 
chased therefor  by  the  plaintiff,  notice  was 
given  by  the  defendant  to  stop  work,  that  the 
contract  was  rescinded  liy  the  defendant,  and 
that  he  would  make  the  plaintiff  whole  for 
any  loss  he  might  suffer.  The  court  held 
that  it  was  the  duty  of  the  plaintiff,  as  soon 
as  he  received  the  notice,  to  have  so  acted  as 
to  save  the  defendant  from  further  damage, 
so  far  as  it  was  iu  his  power. 

In  Danforth  v.  Walker,  37  and  40  Vt..  the 
defendant  made  a  contract  with  the  plain- 
titfs  to  purchase  of  tliem  five  car  loads  of 
potatoes,  being  fifteen  hundred  bushels,  to  be 
delivered  at  a  designated  place  as  soon  as  the 
defendant  should  call  for  them,  and  as  soon 
as  he  could  get  them  away,  some  time  dur- 
ing the  winter.  Soon  after  the  first  car  load 
was  taken,  potatoes  fell  in  the  market,  and 
the  defendant  thereupon  wrote  the  plaintiffs 
not  to  purchase  any  more  potatoes  until  they 
should  hear  from  him.  The  court  held  this 
created  a  breach  of  the  contract,  and  that 
plaintiffs  were  not  authorized  to  purchase 
any  more  potatoes  on  account  of  the  defend- 
ant after  they  received  the  notice.  The  court, 
in  the  case  in  37  Vt,  on  page  244,  use  this 
language:  "While  a  contract  is  executory  a 
party  has  the  power  to  stop  performance  on 
the  other  side  by  an  exnlicit  direction  to  that 


effect,  by  subjecting  himself  to  such  dam- 
ages as  will  compensate  the  other  party  for 
being  stopped  in  the  performance  on  his  part 
at  that  point  or  stage  in  the  execution  of  the 
contract.  The  party  thus  forbidden  can  not 
afterwards  go  on,  and  therel)y  increase  the 
damages,  and  then  recover  such  increased 
damages  of  the  other  party."  And  this  same 
rule,  upon  the  authority  of  these  cases,  is 
laid  down  in  2  Suth.  Dam.  3G1. 

The  points  in  issue  in  Collins  v.  Delaporte, 
are  not  pertinent  to  the  present  question,  but 
in  the  opinion  the  court  quotes  the  rule  as 
al)ove  laid  down,  upon  the  authority  of  Dan- 
forth V.  Walker,  and  other  cases. 

It  will  be  observed  that  in  each  of  these 
cases  the  time  for  the  performance  of  the 
contract  had  arrived,  and  its  performance 
had  been  entered  upon.  In  neither  of  them 
was  the  defendant  at  liberty,  after  notifying 
the  plaintiff  not  to  proceed  further  in  the 
performance  of  the  contract,  to  demand  that 
he  should  proceed  to  perform  it,  as  it  was 
said  in  Frost  v.  Knight,  supra,  the  defendant 
was,  in  case  of  notice,  not  to  perform  a  con- 
tract the  time  of  the  performance  of  Avhich 
is  to  commence  in  the  future.  In  these  cases 
there  is  no  time  or  opportunity  for  repentance 
or  change  of  mind,— in  those  there  was. 
That  it  was  not  intended,  by  these  cases,  to 
trench  upon  the  doctrine  of  Leigh  v.  I'ater- 
son,  Phillpotts  v.  Evans,  and  other  cases  of 
like  character,  is  manifest  from  the  fact  that 
they  make  no  reference  to  those  cases,  or  to 
the  rule  they  announce;  and  in  Collins  v. 
Itelaporte,  no  reference  is  made  to  Daniels  v. 
Newton,  reported  in  the  next  preceding  vol- 
ume. 114  Mass.  530,  wherein  that  court  re- 
fused to  follow  the  modification  made  in 
Hochster  v.  De  Latour,  and  Frost  v.  Knight, 
of  the  rule  recognized  by  the  preceding  Eng- 
lish decisions,  but  hela  that  an  action  for 
the  breach  of  a  written  agreement  to  pur- 
chase land,  brought  before  the  expiration  of 
the  time  given  for  the  purchase,  can  not  be 
maintained  by  proof  of  an  absolute  refusal, 
on  the  defendant's  part,  ever  to  purchase.  It 
follows  that,  in  our  opinion,  the  ruling  on  the 
point  in  question  was  free  of  substantial  ob- 
jection. 

H<  *  3|c  *  *  *  * 

Judgment   affirmed. 


BREACH  OF  AGREEMENT  TO  TAKE  OR  BUY  GOODS. 


263 


HOSMER  et  al.  v.  WILSON. 

(7  Mich.  2t»4.) 

Supreme  Court  of  Michigan.     Oct.  17,  1859. 

Assmnp.sit  by  John  B.  Wilson  nfi:ainst 
Ruins  Hosiuer  and  another  "for  woj-U  ami 
labour  done,  and  serviL-e.s  rendered,  and 
materials  furnished,  by  plaintiff  and  his 
servants  for  defendants,  all  at  request  of 
said  defendants."  J  udy;nient  for  plain  tiff, 
and  defendants  brlns  error.     Reversed. 

It  appeared  that  one  of  defendants  had 
called  at  plaintiff'.s  foundry,  and  there 
signed  a  witten  order  for  an  engine,  to  be 
paid  for  when  taken  out  of  the  shop,  and 
that  i)laintift"s  clerk  accepted  the  orrler; 
that  plaintiff  then  proceeded  to  make  such 
enijine,  and  only  stojjped  when  he  received 
a  letter  from  defendants  counteruiandii!?^' 
the  order. 

.Jerome  &  tSwift.  for  plaintiffs  in  error. 
Towle,  Hunt  &  Newberry,  for  defendant 
in  error. 

CHRLSTIANCY,  J.  Whether  the  writ- 
ten niemoratidum  sijrned  by  the  defend- 
ants below,  when  taken  in  connection 
with  the  whole  transaction  between  the 
parties,  was  understood  by  all  of  them  as 
a  contract,  mifi:ht  have  been  a  fair  ques- 
tion of  fact  for  the  jury.  lUit  admitting 
tlie  contract  to  have  been  proved  in  all  re- 
si)ects  as  claimed  by  the  |)laintiff.  and  that 
defendants  below  wronjjjfuUy  counter- 
manded the  order  for  the  engine,  after  the 
plaintiff  had,  in  good  faith,  made  most  of 
the  castings,  and  done  a  large  part  of  the 
work  ;  the  first  question  which  arises  is, 
whether  the  plaintiff  was  entitled  to  re- 
cover upon  the  common  counts  for  woi'k 
and  labor,  as  upon  a  quantum  meruit? 
As  to  the  materials  it  is  admitted  he  could 
not,  though  contained  in  the  same  count; 
as  they  still  belonged  to  p4aintiff,  and 
were  never  delivered  to  defendants. 

In  the  case  of  a  contract  for  a  certain 
amount  of  labor,  or  for  work  for  a  specified 
period  —  when  the  labor  i.s  to  be  perforn;ed 
on  the  materials  orproperty,  or  in  carrying 
on  the  business,  of  the  defendant,  or  when 
the  defendant  has  otherwise  accepted  or 
appropriated  I  he  labor  performed,  if  the  de- 
fendant prevent  the  plaintiff  from  per- 
forming the  whole,  or  wrongfully  dis- 
charge him  from  his  employment, or  order 
him  to  stop  the  work,  or  refuse  to  pay 
as  he  lias  agreed  (when  paynunts  become 
due  in  the  progress  of  the  work),  (jr  disa- 
ble himself  from  performing,  or  unquali- 
fiedly refuse  to  i)erfonn  his  part  of  the 
contract,  the  ])laintiff  may,  withotifr  fur- 
ther jieif'jrmauce,  elect  to  sue  ui)on  the 
contra"t  and  recover  damages  for  the 
breach,  or  treat  the  tontiact  as  at  an 
end,  and  sue  in  general  assum])sit  for  the 
woi'k  and  labor  actuallv  i^erformed:  Hall 
V.  Ruplev.  ]{)  Barr,  L';]l  ;"Moulton  v.  Trask, 
9  Mete,  579;  Derby  v.  Johrson,  L'l  Vt.,  21  ; 
Canada  v.  Caiiada,  (j  Cush.,  15;  Draper  v. 
Randolph,  4  Harrington,  454;  Webster  v. 
Enfield,  5  Gilm.,  29S. 

And  in  such  cases  he  may,  it  would  seem, 
under  tlie  common  indebitatus  cotint,  re- 
cover the  contract  prices  where  the  case  is 
such  that  the  labor  d(jne  can  be  measured 
or  apportioned    by  the  contract   rate;  or 


whether  it  can  be  so  apportioned    or   not, 
he  may  under  the  quantum  meruit  recover 
what  it  is  reasonably  worth.     But    in    all 
such   cases,    the  defciulant,  having  appro- 
priated   and    received    the    benefit    of   the 
labor  (or,  what    is   equivalent,  having  in- 
duced the  plaintiff  to  expend    his  labor  for 
him,  an(!,  if  properly  performed  according 
1  to  nis  desire,  the  defendant  being  estopped 
j  to   deny    the   benefit),  a    duty  is    imp(jsed 
upon    the   defendant   to  pay  for  the  labor 
thus   ])erforn)ed.      This  duty  the   law   en- 
forces under    the  fiction  of  an  implied  con- 
tract, growing  out  of  the  reception  or  ap- 
■  pr«,pi-iation  of  the  plaintifl's  labor. 
I      It    i.s    therefore  e\ident,  l.st,  that    in    all 
'  the  cases   supposed,  an    implied   contract 
would  have  arisen,  and  the  jtlaintiff  might 
have  recovered  upon  a  quantum  meruit,  if 
no  s[)ecial   contract   had  ever  been  made; 
2d,  that  in  the  like  cases  (where  (he  value 
of  the  work  done  C(jul(l  not,  as  it  probably 
could  not  in  the  case  before   us,  be   atipor- 
j  tioned  l)y  the  contract  juice)  the  value  or 
fair  price  of  the  work    done,  would    neces- 
I  sarily  constitute  the  true  measure  of  dam- 
ages.    And    in  all    such  cases,  as  first  sup- 
posed,  either   the  contract   price,    or   the 
reasonable  worth  of  the  labor  done,  would 
measure  the  damages. 

Similar    considerations     and    like   rules 
Would,    doubtless,   equally    apply    to  con- 
tracts for  furnishing  materials,  and  for  the 
isale   and    delivery    of    pergonal    i)ropertj , 
!  when,  after  part  of  the  materials  or  i)ro[) 
erty  has  been    received    and    appropriated 
by.  or  k-ested  in  the  defendant,  he  has  pre- 
j  vented   the   plaintiff  from    performing,  or 
!  authorizing   him    to  treat  the  contract  as 
I  at  an  end,  on   any  of   the  grounds   above 
1  mentioned. 

But   the   case   before     us   stands     ufion 
'  very    different     grounds.      Here   the    c(jn- 
tract,    as   claimed    to    have   been    prcned, 
I  was  in  no  just  sense  a  contract   for  work 
1  and    labor,  nor  could    the   plaintiff,  while 
at  work  upon  the  engine,  be  properly  said 
to  be   engaged   in    the   business    of  the  de- 
fendants.    It  was  substantially  a  contract 
for  the   sale  of  an  engine,  to    be  made  and 
furnished    b.v  the   ])laintiff,  to    the   defend- 
ants, from  the   shop,  and,  of  course,  from 
I  the  materials  of  the  plaintiff.     The  defend- 
ants had  no  interest    in  the  materials,  nor 
any  concern  with  tlie  amount  of  the  labor. 
!  They  were   to   pay  a    certain  price  for  the 
engine    when    completed.     Engines,   it     is 
true,  are  not   constructed  witliout   labor; 
{the   labor,    therefore,   constitutes   part  of 
the  value  of    the   engine.     But    this  would 
have  been  equally  true  if   the  ccmtract   in 
this  rase  had  been  for   an    engine   already 
con»i>leted. 

[      The  labor  of   the    plaintiff  was  upon  his 
!  own  materials,  to  increase  their  s^alne,  for 
i  the  pur|,t).'ie  of  effecting   f^.  sale    to    defend- 
jants    when    completed.     No    title    in    any 
j  part    of   the   Uiaterials  was    to  vest  in  de- 
fendants   till    the    whole   should    be   com- 
pleted bj- I'laintiff.  and  delivered  to  defend- 
ants.    The  plaintiff  might  have   sold    any 
of  the  materials,  after   the  work  was  per- 
formed, or    the  whole   engine   when   com- 
pleted, at    any  time   before  delivery  to,  or 
acceptance  bj'  defendants. 

Whether,    therefore,   the   lalior   actually 
performed   on   these   materials,  when    the 


270 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


defendants  refused  to  go  on  with  the  con- 
tract, or  prevented  the  fnitht-r  perfonn- 
anoe,  had  enhanced  or  diminished  the 
value  of  tiie  materi;il.s,  and  Iiow  nuicli, 
would  be  a  necessary  (juestion  of  fact,  in 
arrivini;'  at  any  prcjper  a)ea8ure  of  d am- 
asses. Tiie  value  of  tlie  w(M'k  and  lal)or 
<]oe.s  not,  therefore,  in  kucIi  a  case,  consti- 
tute tlie  proper  criterion  or  measure  of 
damages.  If  the  value  of  the  materials 
has  been  enhanced  by  the  labor,  the  plain- 
tiff, still  owning  the  materials,  has  already 
received  compensation  to  the  extent  of 
the  increased  value;  and  togivphim  dam- 
ages to  the  full  value  of  the  labor,  would 
give  him  more  than  a  compensation,  if 
the  value  of  the  materials  has  been  dimin- 
ished, the  value  of  the  labor  would  not 
make  the  compensation  adequate  to  the 
loHS.  It  would  be  only  in  the  single  case 
where  the  materials  have  neither  been  in- 
creased nor  diminished  by  tiie  labor,  that 
the  value  of  the  labor  would  measure  the 
damages.  Such  a  case  could  seldom  oc- 
cur, and  whether  it  could  or  not,  it  must 
always  be  a  question  of  fact  in  the  ease, 
whether  the  value  of  tlie  materials  does 
remain  the  same,  cr  whether  it  has  been 
increased,  or  diminished,  and  to  what  ex- 
tent. 

Again,  as  the  defendants  never  received 
the  engine,  nor  any  of  the  materials,  the 
title  and  possession  still  remained  in  the 
plaintiff,  and  the  defendants  never  having 
received  or  appropriated  the  labor  of  the 
plaintiff,  if  the  same  work  l)ad  been  per- 
formed under  the  like  circumstances,  with- 
out any  actual  or  special  contract,  the 
law  would  have  imposed  no  duty  upon 
the  defendants,  and  therefore  implies  no 
contract  on  their  part  to  i)ay  for  the 
work  done:  1  Chit.  PL,  oS2;  Atkinson  v. 
Bell,S  B.&C.,277;  Allen  v.  Jarvis,  HO  Conn., 
3S. 

The  only  contract,  therefore,  upon  which 
the  plaintiff  can  I't^ly  to  pay  him  for  tiie 
labor.  Is  the  spec'al  contract.  No  duty  Is 
imposed  upon  the  defendants  otherwise 
than  by  this.  This  contract,  therefci-e, 
must  form  the  basis  of  theplaiutiff's  ac- 
tion. He  must  declare  upon  it,  and  claim 
Ills  damages  for  the  breach  of  it,  or  for 
being  wrongfully  prevented  from  perform- 
ing it.  His  damages  will  then  be  the  ac- 
tual damages  which  he  has  suffered  from 
the  refusal  of  the  defendants  to  accept  the 
articles,  or  in  consequence  of  being  pre- 
vented from  its  performance;  and  these 
damages  may  be  more  or  less  than  the 
value  of  the  labor.  This  case,  tiierefore, 
in  this  respect,  comes  directly  within  the 
principle  recognized  in  the  case  of  Atkin- 
son V.  Bell,  above  cited,  and  in  Allen  v. 
Jarvis,  20  Conn.,  3.S  (a  well  reasoned  case, 
which  we  entirely  apfiro^'e).  And  see 
Moody  v.  Brown,  84  Me.,  107,  where  the 
same  principle  is  recognized. 

But  it  was  claimed  by  plaintiff's  counsel 
that  no  action  couhl  have  been  main- 
tained on  the  special  contract  until  fully 
performed,  and  the  engine  delivered  or 
tendered  to  the  defendants ;  that  the  un- 
qualified refusal  of  the  defendants  to  take 
the  engine,  when  it  should  be  completed, 
was  not  a  prevention  of  performance 
which  would  authorize  the  plaintiff  to  sue 
upon   the  contract  on   that   ground.     We 


think  it  was,  and  that  such  absolute  re- 
fusiil  is  to  be  considered  in  the  same  light, 
as  repeats  the  plaintiff's  remedy,  as  an  ab^ 
Solute,  physical  prevention  by  the  defend- 
ants. This  view  will  be  found  fully  sus- 
tained by  the  following  cases:  (Ajrt  v. 
Ambergate  Railway  Co.,  (J  E.  L.  &  Eq.,230; 
Derby  v.  Johnson,  21  Vt.,  21;  Clarke  v. 
Marsiglia,  1  Denio,  :317;  Hochster  v.  De 
Latour,  20  E.  L.  &  Eq.,  157.  In  the  latter 
case,  it  was  held  that  a  refusal  of  the 
employer  before  the  work  commenced,  to 
allow  it  to  be  done,  authorized  an  imme- 
diate action  upon  the  contract. 

So,  a  refusal  to  make  any  payment, 
which,  by  the  contract,  is  to  be  made 
during  the  progress  of  the  work,  has  the 
same  effect:  Draper  v.  Randolph,  above 
cited;  and  see  Hoagland  v.  Moore,  2 
Blackf.,  1C)7;  Webster  v.  Enfield,  5  Gilm., 
29S;  Withers  V.  Reynolds,  2  B,  &  Ad.,  882. 
See  this  whole  subject  ably  discussed,  and 
the  authorities  cited,  in  2  Smith's  Lead. 
Cas.  (Amer.  Edit.),  22  to  ?,S;  and  for  what 
will  amount  to  prevention,  see  note  of 
Hare  &  Wallace  to  same,  40.  As  to  mode 
of  declaring  on  the  contract:  Ibid.,  41, 
and  1  Chit.  PL,  326. 

It  woulfl  he  unreasonable  and  unjust  to 
hold  that  the  plaintiff,  in  this  case,  after 
the  positive  countermand  of  the  defend- 
ants' order,  was,  nevertheless,  bound  to  go 
on  and  complete  the  engine,  and  thereby 
increase  the  damages,  before  he  could  re- 
cover for  the  work  already-  done.  The 
defendants  cannot  complain  that  the 
plaintiff  has  given  credit  to  their  asser- 
tion. The  law  will  not  require  a  vain 
thing.  And  it  is  certainly,  in  such  cases, 
much  better  for  both  parties  to  hold  the 
party  thus  notified  to  be  fully  justified  in 
stripping  the  work,  as  it  lessens  the  dam- 
ages the  other  party  has  to  pay,  and  re- 
lieves the  party  who  has  to  do  the  v.'ork 
from  expending  further  labor,  for  which 
he  lias  fair  notice  he  is  to  expect  no  pay- 
ment. And  It  is  certainly  very  question- 
able whether  the  party  thus  notified  has  a 
right  to  go  on  after  such  notice,  to  in- 
crease the  amount  of  his  own  damages. 
In  Clarke  v.  Marsiglia,  above  cited,  it  was 
held  he  had  no  such  right,  and  that  the 
employer  has  a  right  (in  a  contract  for 
work  and  labor)  to  stop  the  work,  if  he 
choose,  subjecting  himself  to  the  conse- 
quences of  a  breach  of  hiscontract,  and  that 
the  workman,  after  notice  to  quit  work, 
has  no  right  to  continue  his  labor,  and 
recover  pay  for  it.  This  doctrine  is  fully 
approved  in  Derby  v.  Johnson,  above 
cited.  This  would  seem  to  be  good  sense, 
and,  therefore,  sound  law.  And  it  would 
seem  that  any  other  rule  must  tend  to  th(> 
injuiy,  and,  in  many  cases,  to  the  ruin  of 
all  parties. 

It  is  unnecessary  here  to  review  the  au- 
thorities cited  by  the  plaintifl's  counsel. 
Most,  if  not  all  of  them,  when  carefully  ex- 
amined, will  be  found  entirely  in  har- 
mony with  the  views  above  expressed. 
The  result  of  them  will  be  found  well  and 
fairly  stated,  and  evidently  form  a  careful 
examination,  in  Allen  v.  Jarvis,  above 
cited.  I  have  made  the  same  examina- 
tion, and  come  to  the  same  result. 

It  may,  however,  be  proper  here  to  say, 
that   in  the  case  of   Blanche  v.  Colburn,  8 


BREACH  OF  AGREEMENT  TO  TAKE  OR  BUY  GOODS. 


271 


Bing.,  14,  upon  which  much  reliance  was 
placed  l)y  the  counsel  for  the  delendant  in 
error,  there  was  a  special  count  upon  the 
contrcict,  as  well  as  the  common  counts, 
aiul  it  inav  bo  inferred  from  the  opinion 
that  the  plaintiff  was  allowed  to  retain 
his  verdict  upon  the  special  count.  And 
we  havethe  high  authority  of  Lord  Camp- 
bell that  such  was  the  ease.  See  Hoch- 
sterv.  De  Latour,  20  EL.  &  Eq.  163,  above 


cited.  As  the  conclusion  at  which  we 
have  arrived  upon  this  point  disposes  of 
the  whole  case,  it  becomes  unnecessary, 
and  even  imi)roper  to  discuss  the  other 
questions  j-aised  in  the  case. 

And,  as  we  do  not  conceive  that  under 
a  writ  of  error  we  have  any  power  to" 
amend  the  declaration  in  this  respect,  the 
judgment  must  be  reversed. 

The  other  justices  concurred. 


272 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


HINCKLEY   V.    PITTSBtTRGH    BESSEMER 
STEEL  CO.,  Limited.  1 

(7  Sup.  Ct.  875,  121  U.  S.  2G4.) 

Supreme  Court  of  the  United  States.     April  18, 
1SS7. 

In  error  to  the  circuit  court  of  the  United 
States  for  the  Northern  district  of  Illinois. 

Thos.  S.  McClelland,  for  plaintiff  in  error. 
John  N.  Jewett,  for  defendant  in  error. 

BLATCHFORD,  J.  This  is  an  action  at 
law,  brought  in  the  circuit  court  of  the  Unit- 
ed States  for  the  Northern  district  of  Illinois, 
by  the  Pittsburgh  Bessemer  Steel  Company, 
Limited,  a  Pennsylvania  corporation,  against 
Francis  E.  Hinckley,  to  recover  damages  for 
the  breach  by  Hinckley  of  a  written  contract 
for  the  purchase  by  him  from  the  company 
of  (5,000  tons  of  steel  rails.  The  contract  was 
as  follows: 

"Memorandum  of  Sale. 

"The  Pittsburgh  Bessemer  Steel  Company, 
Limited,  have  sold  and  hereby  agree  to  make 
and  deliver  to  the  order  of  P.  E.  Hinckley, 
Esq.,  204  Dearborn  St.,  Chicago,  Ills.,  and  the 
said  Hinckley  has  purchased  and  agrees  to 
pay  for,  six  thousand  gross  tons  of  first-qual- 
ity steel  rails,  to  weigh  fifty-two  (.")2)  pounds 
to  the  yard,  and  to  be  rolled  true  and  smooth 
to  the  pattern  to  be  furnished  by  the  said 
Pittsburgh  Bessemer  Steel  Company,  Lim- 
ited, pattern  No.  5.  Said  rails  are  to  be  made 
of  the  best  quality  of  Bessemer  steel,  and  to 
be  subject  to  inspection  as  made  and  ship- 
ped, and  to  be  well  straightened  and  free 
from  flaws,  and  to  be  drilled  as  may  be  di- 
rected. At  least  ninety  per  cent,  shall  be  in 
thirty  (30)  feet  lengths,  with  not  over  ten 
(10)  per  cent,  of  shorter  lengths,  diminishing 
by  one  foot  differences,  none  to  be  less  than 
twenty-four  (24)  feet.  All  second-quality 
rails,  or  excess  of  shorts  which  may  be  made, 
not  exceeding  five  (5)  per  cent,  of  each 
month's  shipments  to  be  taken  at  the  usual 
reduction  of  ten  (10)  per  cent,  in  price,  and  to 
be  piled  and  shipped  separately,  (painted 
white  on  both  ends.)  as  may  be  ordered  by 
the  inspector.  Deliveries  to  begin  in  May. 
1882,  in  which  month  one  thousand  tons  shall 
be  delivered,  and  to  continue  at  the  rate  of 
twenty-five  hundred  tons  per  month  after 
July  1,  1882.  until  finished,  strikes  and  acci- 
dents beyond  ordinary  control  of  said  steel 
company,  and  acts  of  Providence,  preventing 
or  suspending  deliveries,  alone  excepted,  in 
which  case  deliveries  are  to  be  delayed  for  a 
corresponding  length  of  time  only.  Price  to 
be  fifty-eight  dollars  net,  per  ton  of  2,240 
pounds  of  finished  steel  rails,  ex.  ship  or 
f.  o.  b.  cars  at  Chicago,  Ills.,  seller's  option. 
Terms  of  payment,  cash  on  delivery  of  in- 
spector's certificate  for  each  five  hundred 
tons  as  fast  as  delivered.     If  shipment  is  de- 


1  AfHrmiug  17  Fed.  584. 


layed  without  fault  of  said  steel  company, 
payment  is  to  be  made  in  cash  upon  comple- 
tion and  delivery  of  each  five  hundred  tons- 
at  Chicago  and  inspector's  certificate.  Rails 
to  be  inspected  at  mill  as  fast  as  completed 
and  ready  for  shipment.  In  witness  where- 
of the  said  Hinckley  has  hereto  set  his  hand 
and  seal,  and  the  Pittsburgh  Bessemer  Steel 
Company,  Limited,  by  its  duly  authorized 
officers,  hath  signed  and  affixed  its  corporate 
seal,  the  day  and  year  aforesaid.  It  is  fur- 
ther agreed,  that  the  Pittsburgh  Bessemer 
Steel  Company,  Limited,  are  not  to  be  re- 
sponsible for  delays  resulting  from  failure 
of  railroads  to  furnish  cars,  proper  efforts, 
having  been  made  to  procure  them,  nor  for 
detentions  after  shipment  has  been  made.  It 
is  understood  tliat  the  purchaser  shall  have 
the  right  to  make  one-half  of  the  order  fifty- 
six  i'M)  pounds  per  yard,  pattern  No.  4  of 
said  steel  company,  notice  to  be  given  thirty 
days  before  the  time  for  the  delivery  of  the 
rails.  F.  E.  Hinckley. 

"Chicago,  Ills.,  February  18,  1882. 
"C.  H.  Odell,  Broker." 

One  copy  of  the  contract  was  signed  by 
Hinckley,  and  a  duplicate  of  it  was  signed 
by  the  co'mpany.  The  defendant  pleaded  ths 
general  issue,  and  the  case  was  tried  by  tha 
court  on  the  due  waiver  of  a  jury.  The 
court  made  the  following  special  finding  of 
facts: 

"(1)  That  the  written  agreement  set  out  and 
described  in  the  declaration  was  duly  exe- 
cuted by  the  plaintiff  and  defendant  in  said 
cause,  as  alleged  in  said  declaration. 

"(2)  That  immediately  after  the  making  of 
said  contract,  and  before  the  time  to  begin 
the  execution  thereof,  the  plaintiff  purchased 
the  requisite  amount  of  material  from  which 
to  manufacture  the  six  thousand  tons  of  steel 
rails  called  for  by  said  contract,  and  that, 
after  the  purchase  of  said  supplies  by  plain- 
tiff, there  was  a  decline  in  the  value  thereof, 
before  the  time  for  the  delivery  of  any  por- 
tion of  said  rails,  and  that  lower  prices  for 
such  supplies  ruled  during  the  months  of 
May,  June,  July,  and  August,  1882. 

"(:3)  That  it  appears  from  the  parol  proof 
heard  on  said  trial,  aside  from  the  provision 
in  said  written  contract  in  regard  to  drilling 
directions,  that  it  was  usual  and  customary 
for  the  purchaser  of  steel  rails  to  give  direc- 
tions as  to  tlie  drilling  thereof,  and  that  each 
railroad  company  has  its  own  special  rules 
for  drilling,  and  the  drilling  of  such  rails  is 
considered  in  the  trade  as  a  part  of  the  work 
of  manufacture,  and  a  part  of  the  duty  of  the 
manufacturer  in  order  to  fully  complete  the 
rails  for  use. 

"(4)  That,  by  letters  dated  April  3d,  April 
20th,  April  20th,  and  April  28th,  from  plain- 
tiff's agents  to  defendant,  and  which  letters 
were  duly  received  by  defendant  before  May, 
1882,  defendant  was  requested  to  furnish 
drilling  directions  for  the  rails  to  be  delivered 
in  May,  under  said  contract,  and  defendant 


BREACH  OF  AGREEMENT  TO  TAKE  OR  BUY  GOODS. 


273 


not  only  neglected  to  comply  with  such  re- 
quest ami  furnish  such  directions,  but  de- 
fendant also  notilicd  plaintiff,  in  reply  to  such 
request,  that  he,  defendant,  was  not  then  pre-, 
pared  to  receive  the  rails  which  were  to  be 
delivered  under  said  contract  in  the  month  of 
May.  Again,  about  the  fifteeuth  of  Juno,  de- 
fendant informed  plaintiff  that  he  was  be- 
ccming  discouraged  about  being  able  to  take 
the  rails.  That,  about  June  23d,  plaintiff 
notified  defendant  that  it  was  ready  to  com- 
mence rolling  the  rails  for  the  July  deliveries, 
as  well  as  to  cover  the  thousand  tons  speci- 
fied in  the  contract  for  delivery  in  May,  of 
which  plaintiff  had  postponed  deUvery  at  de- 
fendant's request,  and  asked  for  drilling  di- 
rections from  the  defendant;  but  defendant 
wholly  neglected  to  give  such  drilling  direc- 
tions. That  about  the  twenty-sixth  of  July, 
defendant,  in  subst^ince,  informed  plaintiff's 
agents  that  his  financial  arrangements  for 
money  to  pay  for  said  rails,  pursuant  to  said 
contract,  had  failed,  and  that  he  could  not 
take  said  rails  unless  plaintiff  would  sell  them 
to  .him  on  six  and  twelve  months'  credit,  for 
which  the  notes  of  the  railroad  company  for 
Avhich  defendant  was  acting  would  be  given, 
which  defendant  would  indorse,  and  also  fur- 
ther secure  with  first-mortgage  bonds,  as  col- 
lateral, at  fifty  cents  on  the  dollar,  but,  un- 
less he  could  secure  the  rails  on  such  terms, 
he  could  not  take  them,  and  that  plaintiff  de- 
clined to  accept  said  proposition  for  the  pur- 
chase (5f  said  rails  on  credit;  and  I  further 
find  that,  on  the  thirtieth  of  August,  18S2, 
plaintiff  notified  defendant  that  the  time  for 
the  completion  of  his  contract  for  the  pur- 
chase of  said  rails  had  expired,  and  request- 
ed defendant  to  advise  it  whether  he  would 
accept  the  rails  or  not.  To  this  request  de- 
fendant made  no  reply. 

"I  further  find  that,  while  plaintiff  did  not 
expressly  agree  with  defendant  to  postpone 
the  time  for  the  delivery  of  the  rails  to  be 
made  and  delivered  under  said  contract,  yet 
plaintiff  did  in  fact  delay  the  rolling  and  de- 
livery of  the  rails  to  be  delivered  in  May, 
and  that,  by  reason  of  the  repeated  state- 
ments of  defendant  that  he  was  not  ready  to 
give  drilling  directions,  not  ready  to  use  said 
rails,  and  not  ready  to  accept  them,  plaintiff 
did  postpone  rolling  said  rails,  and  in  fact 
never  rolled  any  rails  to  be  delivered  on  said 
contract,  but  that  plaintiff  was  at  all  times 
during  the  months  of  May,  July,  and  August 
ready  and  able,  in  all  respects,  to  fulfill  said 
contract  and  make  said  rails,  and  the  same 
would  have  been  ready  for  delivery,  as  call- 
ed for  by  said  contract,  if  defendant  had  fur- 
nished drilling  directions,  and  had  not  stated 
to  plaintiff's  agents  that  he  was  not  ready 
to  furnish  said  drilling  directions,  and  not 
ready  to  accept  said  rails.  I  further  find 
that  on  or  about  the  fifteenth  day  of  Septem- 
ber, 1882.  defendant  was  formally  requested 
to  furnish  drilling  directions  and  to  accept 
said  rails,  and  that  he  replied  to  such  request 
that  he  should  decline  to  take  any  rails  un- 
LAW  DA:\I.2d  Ed.— 18 


dor  said  contract,  and  that  he.  had  made  ar- 
rangements to  purchase  rails  of  others  at  a 
good  deal  lower  price.  I  therefore  find,  from 
the  testimony  in  this  case,  that  defendant,  by 
requesting  plaintiff  to  postpone  the  deliveiy 
<?f  said  rails,  and  by  notifying  the  plaintiff 
that  he  was  not  ready  to  accept  and  pay  for 
said  rails,  excused  the  plaintiff  from  the 
actual  manufacture  of  said  rails  and  a  tender 
thereof  to  defendant.  And  I  further  find 
that  defendant's  statement  to  plaintiff,  oa 
the  twenty-sixth  of  July,  that  ho  could  not 
pay  cash  for  said  rails,  as  called  for  by  the 
contract,  and  that  he  wished  to  buy  them  on 
credit,  was  in  fact  a  notice  that  he  would 
not  be  able  to  pay  for  said  rails  if  rolled  and 
tendered  to  him  by  plaintiff.  I  therefore  con- 
clude, and  so  find  as  a  matter  of  fact,  fi'oni 
the  evidence  in  the  case,  that  said  plaintiff 
in  apt  time  requested  defendant  to  furnish 
directions  for  the  drilling  of  said  rails,  anil 
that  defendant  neglected  and  refused  to  do 
so,  and  that,  although  plaintiff  was  ready  and 
able  to  fully  perform  said  contract,  and  make 
and  deliver  said  rails  to  defendant  as  re- 
quired by  said  contract,  defendant  refused  to 
accept  and  pay  for  said  rails. 

"(3)  That  plaintiff  manufactured  and  sold 
to  other  persons  4,000  tons  of  steel  rails,  from 
the  materials  so  purchased,  with  which  to 
perform  said  contract  with  defendant,  for 
which  said  rails  plaintiff  received  $54'.G0  per 
ton,  delivered  at  a  port  on  Lake  Huron,  and 
that  plaintiff  made  a  profit  of  $1.(30  per  ton 
on  said  4,000  tons;  that,  by  reason  of  defend- 
ant's refusal  to  accept  said  rails,  the  plain- 
tiff had  no  employment  for  its  mill  for  a  time, 
and  was  obliged  to  stop  its  mill  for  about 
three  weeks  in  the  month  of  August,   1882. 

"(6)  That  it  would  have  cost  plaintiff  $50 
per  ton  to  have  manufactured  and  delivered 
the  rails  called  for  by  said  contract  to  de- 
fendant, according  to  the  terms  of  said  con- 
tract; so  that  plaintiff's  profits,  if  it  had 
not  been  prevented  from  fulfilling  said  con- 
tract by  the  conduct  of  defendant,  would 
have  been  $8  per  ton  on  each  ton  of  rail* 
called  for  by  said  contract.  And,  because  of 
said  facts,  I  find  that  defendant  was  guilty 
of  a  breach  of  said  contract,  and  that  plain- 
tiff" hath  sustained  damage,  by  reason  of 
such  breach,  in  the  sum  of  .$42,400." 

On  these  findings,  a  judgment  was  entered 
for  the  plaintiff'  for  $42,400  damages,  and  for 
costs.  17  Fed.  584.  To  review  that  judg- 
ment the  defendant  has  brought  this  writ  of 
error.  After  tne  record  was  filed  in  this  court, 
it  being  discovered  that  there  was  an  error  in 
computation  in  entering  the  judgment  for 
$42,400,  instead  of  $41,000,  the  circuit  court 
allowed  the  plaintiff  to  remit  the  difference, 
$800,  and  an  order  was  entered  accordingly,  as 
of  the  date  of  the  judgment. 

On  the  special  findings,  the  only  question 
open  for  review  is  whether  the  facts  found 
are  sufficient  to  support  the  judgment.  There 
can  be  no  question  that,  on  those  facts,  the 
defendant  is  liable  in  damages  for  a  breach 


274 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


of  the  contract.     It  is  provided  in  the  contract 
that  the  rails  are   "to  be  drilled  as  may  be 
directed."     The  circuit  court  finds  that  it  ap- 
pears from  the  proof,  aside  from  the  provision 
in  the  v^Titten  contract  in  regard  to  drilling 
directions,  "'that  it  was  usual  and  customary 
for  the  purchaser  of  steel  rails  to  give  direc- 
tions as  to  the  drilling  thereof;"  that  each  rail- 
road  has   its   own   special   rules   for  drilling; 
that  the  drilling  of  the  rails  is  considered  in 
the  trade  as  a  part  of  the  work  of  manufac- 
ture, and  a  part  of  the  duty  of  the  manufac- 
turer, in  order  to  fully  complete  the  rails  for 
use;    that,   by  four  letters,  written  in  April. 
1882,  by  the  agents  of  the  plaintiff  to  the  de- 
fendant, and  which  letters  were  duly  received 
by  the  defendant  before  May,  1882,  he  was 
requested  to  furnish  drilling  directions  for  the 
1,000  tons  of  rails  to  be  delivered  in  May,  un- 
der the  contract;   that  he  neglected  to  comply 
with  that  request,  and  also  notified  the  plain- 
tiff that  he  was  not  then  prepared  to  receive 
the  rails  which,  by  the  contract,  were  to  be 
delivered  in  May;    that  in  June  the  plaintiff 
again  asked  for  drilling  directions  from   the 
defendant,  in  respect  both  to  the  1,000  tons, 
and  to  the  2.500  tons  to  be  delivered  in  July, 
but  tlie  defendant  neglected  to  give  such  drill- 
ing directions;    and  that,  in  the  latter  part  of 
July,   he  notified  the  plaintiff,   in   substance, 
that  he  would  not  perform  the  contract.     The 
curcuit  court  further  finds  that,  by  reason  of 
the  repeated  statements  of  the  defendant  that 
he  was  not  ready  to  give  drilling  directions, 
not  ready  to  use  the  rails,  and  not  ready  to 
accept  them,  the  plaintiff  postponed  the  roll- 
ing of  them,  and  never  rolled  any  rails  to  be 
delivered  on  the  contract,  but  was  at  all  times 
during  May,  July,  and  August.  1882.  ready  and 
able  to  fulfill  the  contract  and  make  the  rails, 
and  the  same  would  have  been  ready  for  de- 
livery as  called  for  by  the  contract,  if  the  de- 
fendant had  furnished  drilling  directions,  and 
had  not  stated  to  the  agents  of  the  plaintiff 
that  he  was  not  ready  to  furnish  the  drilling 
directions,  and  not  ready  to  accept  the  rails; 
and  that,  on  or  about  the  fifteenth  of  Septem- 
ber, 1882.  he  was  formally  requested  to  fur- 
nish drilling  directions  and  to  accept  the  rails, 
and   replied   to   such  request   that   he   should 
decline  to  take  any  rails  under  the  contract, 
and  had  made  arrangements  to  purchase  rails 
of  others  at  a  lower  price.     The  circuit  court 
also  finds  that  the  defendant,  by  requesting 
the  plaintiff  to  postpone  the  delivery  of  the 
rails,   and  by  notifying  the  plaintiff  that  he 
was  not  ready  to  accept  and  pay  for  them, 
■excused  the  plaintiff  from  actually  manufac- 
turing them  and   tendering  them   to   the  de- 
fendant.    This  conclusion  is  entirely  warrant- 
ed by  the  facts  foimd,  and,   on  those  facts, 
the  defendant  must  be  held  liable  in  damages. 
The  only  other  question  open  on  the  findings 
is  as  to  the  proper  rule  of  damages. 

The  circuit  court  finds  that  it  would  have 
cost  the  plaintiff  $50  per  ton  to  have  manu- 
factured and  delivered  the  rails  called  for  by 
the  contract,  according  to  its  terms;    that  the 


profits  of  the  plaintiff,  if  the  conduct  of  the 
defendant  had  not  prevented  it  from  fulfilling 
the  contract,  would  have  been  ?8  per  ton  on 
each  of  the  6,000  tons,  being  $48,000;  and  that 
the  plaintiff  manufactured  and  sold  to  other 
persons  4,000  tons  of  rails  from  the  materials 
purchased  by  it  with  which  to  perform  the 
contract  with  the  defendant,  and  received  for 
such  rails  $54.00  per  ton,  and  made  a  profit 
of  $1.60  per  ton  on  the  4.000  tons,  being  a 
profit,  in  all,  of  $6,400.  Deducting  this  $6,400 
from  the  $48,000,  leaves  $41,600,  for  which 
amount  the  judgment  was  finally  entered. 

The  defendant  contends  that  the  plaintiff 
should  have  manufactured  the  rails  and  ten- 
dered them  to  the  defendant,  and,  upon  his 
refusal  to  accept  and  pay  for  them,  should 
have  sold  them  in  the  market  at  Chicago,  and 
held  the  defendant  responsible  for  the  differ- 
ence between  what  they  would  have  brought 
on  such  sale  and  the  contract  price.  But  we 
think  no  such  rule  is  applicable  to  this  case. 
This  was  a  contract  for  the  manufacture  of  an 
article,  and  not  for  the  sale  of  an  existing 
article.  By  reason  of  the  facts  found  as  to 
the  conduct  and  action  of  the  defendant,  the 
plaintiff"  was  excused  from  actually  manu- 
facturing the  rails,  and  the  rule  of  damages 
applicable  to  the  case  of  the  refusal  of  a  pur- 
chaser to  take  an  existing  article  is  not  ap- 
plicable to  a  case  like  the  present.  The  prop- 
osition that,  after  the  defendant  had,  for  his 
own  purposes,  induced  the  plaintiff"  to  delay 
the  execution  of  the  contract'  until  after  the 
thirty-first  of  August,  1882.  and  had  there- 
after refused  to  take  any  rails  under  the  con- 
tract, the  plaintiff"  should  still  have  gone  on 
and  made  the  6,000  tons  of  rails  and  sold  them 
in  the  market  for  the  defendant's  account, 
in  order  to  determine  the  amount  of  its  re- 
covery against  the  defendant,  can  find  no 
countenance  from  a  court  of  justice. 

It  is  found  by  the  circuit  court  that,  im- 
mediately after  the  making  of  the  contract, 
and  before  the  time  to  begin  its  execution, 
the  plaintiff  purchased  the  requisite  amount 
of  material  from  ^^'hich  to'  mauufactui-e  the 
0,000  tons  of  rails;  that,  after  the  purchase 
of  such  supplies  there  was  a  decline  in  their 
value  before  the  time  arrived  for  the  delivery 
of  any  part  of  the  rails;  and  that  lower  prices 
for  such  supplies  ruled  during  May,  June, 
July,  and  August,  1882.  It  is  also  to  be  in- 
ferred, from  the  price  at  which  the  4.000  tons 
of  rails  were  sold  by  the  plaintiff",  that  the 
market  price  of  rails  declined  below  the  price 
named  in  the  contract;  and  the  reason  as- 
signed by  the  defendant,  in  September,  1882, 
for  not  taking  any  rails  under  the  contract, 
was,  that  he  had  made  arrangements  to  pur- 
chase rails  of  others  at  a  lower  price.  Under 
these  circumstances,  the  defenuant  is  estopped 
from  Insisting  that  the  plaintiff  should  have 
undertaken  the  risk  and  expense  of  actually 
making  and  seUing  the  rails.  These  consider- 
ations also  show  that  the  rule  of  damages 
adopted  by  the  circuit  court  was  the  proper 
one.     It  was  in  accordance  with  the  rule  laid 


BREACH  OF  AGREEMENT  TO  TAKE  OR  BUY  GOODS. 


275 


<clown  by  this  coiii't  in  Railroad  Co.  v.  Howard, 
13  How.  ;J07.  lu  tliat  case  a  contractor  for 
the  building  of  a  railroad  sued  the  company 
for  its  breach.  On  the  question  of  damages 
this  court  said,  (page  344:)  "It  must  be  ad- 
mitted that  actual  damages  were  all  that 
could  lawfully  be  given  in  an  action  of  cove- 
nant, even  if  the  company  had  been  guilty  of 
fraud.  But  it  by  no  means  follows  that  the 
profits  are  not  to  be  allowed,  understanding, 
as  we  must,  the  tenn  'profits,'  in  this  instruc- 
tion, as  meaning  the  gain  which  the  plaintiff 
would  have  made  if  be  had  been  permitted 
to  complete  his  contract.  Actual  damages 
clearl.A-  uielude  tne  direct  and  actual  loss  which 
the'plaintilf  sustains  propter  rem  ipsam  non 
habitam.  And,  in  case  of  a  contract  like 
this,  that  loss  is,  among  other  things,  the  dif- 
ference between  the  cost  of  doing  the  work 
and  the  price  to  be  paid  for  it.  This  dif- 
ference is  the  inducement  and  real  considera- 
tion which  causes  the  contractor  to  enter  into 
the  contract.  For  this  he  expends  his  time, 
exerts  his  skill,  uses  his  capital,  and  assumes 
the  risks  which  attend  the  enterprise.  And 
to  deprive  him  of  it,  when  the  party  has 
broken  the  contract  and  unlawfully  put  an 
end  to  the  work,  would  be  unjust.  There  is 
no  rule  of  law  which  requires  us  to  inflict  this 
injustice.  Wherever  profits  are  spoken  of  as 
not  a  subject  of  damages,  it  will  be  found  that 
something  contingent  upon  future  bargains  or 
speculations  or  state's  of  the  market  are  re- 
ferred to,  and  not  the  difference  between  the 
agreed  price  of  something  contracted  for  and 
its  ascertainable  value  or  cost.  See  Masterton 
V.  Mayor,  etc.,  7  Hill,  61,  and  cases  there  re- 
ferred to.  We  hold  it  to  be  a  clear  rule  that 
the  gain  or  profit  of  which  the  contractor  was 
deprived  by  the  refusal  of  the  company  to 
allow  him  to  proceed  with  and  complete  the 
work,  was  a  proper  subject  of  damages." 

In  U.  S.  V.  Speed,  8  Wall.  77,  where  the 
defendant  agreed  to  pack  a  specified  number 
of  hogs  for  the  plaintiff,  and  made  all  his 
preparations  to  do  so,  and  was  ready  to  do 
so,  but  the  defendant  refused  to  furnish  the 
hogs  to  be  packed,  this  court,  citing  with  ap- 
proval Masterton  v.  INIayor,  etc.,  held  that 
the  measure  of  damages  was  the  difi'erence 
between  the  cost  of  doing  the  work  and  the 
price  agreed  to  be  paid  for  it,  "making  rea- 
sonable deduction  for  the  less  time  engaged, 
and  for  release  from  the  care,  trouble,  risk, 
and  responsibility  attending  a  full  execution 
of  the  contract."  These  views  were  again 
approved  by  this  court  in  U.  S.  v.  Behan, 
110  U.  S.  338.  4  Sup.  Ct.  81. 

In  the  present  case  the  ability  of  the  plain- 
tiff to  fulfill  the  contract  at  all  times  is  found 
as  a  fact  by  the  circuit  court,  as  also  the 
fact  that,  by  reason  of  the  defendant's  re- 
fusal to  accept  the  rails,  the  plaiutilf  was 
obliged  to  stop  its  mill  for  about  three  weeks, 
in  August.  1882.  The  defendant  received 
the  benefit  of  all  the  mitigation  of  damages 
which,  upon  the  facts  found,  he  was  entitled 
to  claim,  and  the  benefit  of  all  the  profits 


made  by  the  plaintiff  which  could  properly 
be  regarded  as  a  substitute  for  the  profits  it 
would  have  received  had  its  contract  with 
the  defendant  been  carried  out.  The  defend- 
ant objects  that,  within  the  statement  of  the 
rule  in  U.  S.  v.  Speed,  there  was  no  deduc- 
tion made  in  this  case  for  the  time  saved, 
and  the  care,  trouble,  risk,  and  responsibility 
avoided  by  the  plaintiff  by  not  fully  execxit- 
ing  the  contract;  but  there  are  no  findings 
of  fact  which  raise  any  such  question.  The 
finding  is  that  it  would  have  cost  the  plain- 
tiff $50  per  ton  to  have  manufactured  and 
delivered  the  rails  called  for  by  the  contract, 
according  to  its  terms.  Under  this  finding, 
it  must  be  held  that  every  proper  element 
of  cost  entered  into  the  JfSO;  and  it  was  for 
the  defendant  to  have  requested  findings 
which  would  authorize  an  increase  of  that 
sum  as  cost. 

There  is  a  bill  of  exceptions  in  the  case, 
on  which  two  questions  are  raised  by  the 
defendant  as  to  the  admission  of  testimony. 
The  contract  between  the  parties  was  nego- 
tiated by  C.  H.  Odell,  who  signed  it  as 
broker,  between  whom  and  the  defendant  the 
correspondence  thereafter,  down  to  and  in- 
cluding the  first  of  May,  1882,  was  carried 
on,  Odell  acting  for  the  plaintiff.  He  made 
the  contract  under  special  instructions,  his 
authority  being  limited  to  that  of  a  sales 
agent.  On  his  examination  as  a  witness  at 
the  trial,  he  testified  that  all  of  his  communi- 
cations with  the  plaintiff  in  regard  to  the 
business  with  the  defendant  were  in  writing 
or  by  telegram.  He  also  testified,  without 
objection,  that  he  kept  the  plaintiff  fully  ad- 
vised of  his  correspondence  with  the  defend- 
ant concerning  the  rails.  H.  P.  Smith,  the 
business  manager  of  the  plaintiff'.  w:1s  then 
called  as  a  witness  for  the  plaintiff",  and  was 
asked  if  the  plaintiff  was  advised  of  the  cor- 
respondence between  Odell  and  the  defend- 
ant, which  had  been  read  in  evidence,  and 
if  Odell's  actions  were  approved  by  the  wit- 
ness as  manager  of  the  plaintiff.  To  this 
the  defendant  objected,  on  the  ground  that 
the  communications  between  Odell  and  the 
plaintiff  consisted  of  letters  and  telegrams, 
which  were  the  only  competent  evidence  of 
the  contents  thereof.  The  court  overruled 
the  objection,  and  the  witness  stated  that  the 
company  was  advised  of  the  correspondence 
and  actions  of  Odell,  and  fully  approved  and 
ratified  the  same.  The  defendant  excepted 
to  the  decision  admitting  the  evidence.  We 
see  no  objection  to  the  admission  of  this 
evidence,  independently  of  the  fact  that  Odell 
had,  without  objection,  testified  to  substan- 
tially the  same  thing.  The  defendant,  in  his 
correspondence  with  Odell,  all  of  which  is 
set  forth  in  the  bill  of  exceptions,  treated 
Odell  as  representing  the  plaintiff',  and  can- 
not now  be  heard  to  question  his  authority 
to  do  so,  or  to  demand  further  evidence  of 
such  an  authority,  or  of  the  adoption  by  the 
plaintiff  of  what  Odell  was  doing,  saying, 
and  asking  on  behalf  of  the  plaintiff.     The 


276 


BREACH  OF  CONTRACTS  RESPECTING  PERSONAL  PROPERTY. 


question  asked  of  Smith,  as  to  wbetlier  he, 
as  manager  of  the  plaintiff,  .  approved  of 
Odell's  actions,  and  the  answer  he  made, 
were  therefore  vmnecessary,  and  could  not 
affect  the  merits  of  the  case. 

Smith  was  further  asked  to  state  in  detail 
the  elements  of  the  cost  of  rolling  the  rails 
in  question.  He  produced  a  memorandum 
showing  items  taken  from  the  plaintiffs 
books,  which,  added  together,  exhibited  the 
cost,  in  August,  1882,  of  manufacturing  one 
ton  of  such  rails  as  those  described  in  the 
contract;  and,  on  being  asked  by  the  plain- 
tiff's attorney  to  testify  to  those  items,  the 
court,  under  the  defendant's  objection,  al- 
lowed him  to  read  the  items  from  the  memo- 
randum. He  furtlier  testified,  under  an  ob- 
jection and  exception  by  the  defendant,  that 
the  actual  cost  to  the  plaintiff  of  making  and 
delivering  the  rails  in  Chicago  would  have 
been  $48.25;  that  he  stated  the  elements  of 
such  cost  from  a  memorandum  prepared  by 
himself,  the  elements  being  taken  from  the 
books  of  the  plaintiff;  that  he  knew  the  pur- 
chase price  of  all  material  which  went  into 
the  manufacture,  because  he  purchased  all 
of  it  himself;  that  the  statement  was  pre- 
pared by  him  from  his  personal  knowledge 
of  the  cost;  that  he  called  off  the  items  from 


a  penciled  memorandum  to  the  book-keeper^ 
who  wrote  them  down;  that  he  (the  witness) 
knew  the  items  to  be  correctly  stated;  and 
that  the  information  as  to  the  items  was 
made  up  from  records  running  through  a 
series  of  four  or  five  months,  and  represent- 
ing an  average  as  to  the  cost  per  ton.  The 
defendant  contends  that  this  evidence  was 
inadmissible,  in  the  absence  of  an  oppoi'- 
tunity  for  him  to  examine  the  plaintiff's 
books,  with  a  view  to  a  cross-examination 
of  the  witness  as  to  the  mode  of  computation 
adopted  by  him,  the  memorandum  being,  as 
contended,  the  result  of  the  conclusions  of 
the  witness  from  the  examination  of  a  large 
number  of  entries  in  the  books  of  the  plain- 
tiff. It  is  a  sufficient  answer  to  this  ob- 
jection, that  the  cost  of  the  rails  was  not 
taken  by  the  court  at  the  sum  of  $48.25,  the 
sum  fixed  by  Smith,  but  the  bill  of  excep- 
tions shows  that  the  cost  was  taken  at  $50 
a  ton,  from  the  testimony  of  Richard  C. 
Hannah,  another  witness;  so  that,  even  if 
the  testimony  was  erroneously  admitted, 
(which  it  is  not  necessary  to  decide,)  the  de- 
fendant suffered  no  prejudice  from  its  ad- 
mission. 

The  judgment  of  the  circuit  court  is  af- 
firmed. 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


277 


HOGAN  V.  KYLE. 
(35  Pac.  399,  7  Wash.  595.) 

■Supreme   Court  of  Washington.    Jan.   6,   1S94. 

Appeal  from  superior  court,  King  county; 
Mason  Irwin,   Judge. 

Action  by  F.  V.  Hogan  against  George  F. 
Kyle  for  breach  of  contract  to  buy  real 
estate.  From  a  judgment  for  plaintiff,  de- 
fendant appeals.     Reversed. 

Preston,  Albertson  &  Donwortli,  for  appel- 
lant.    II.  B.  Slauson,  for  respondent. 

DUNBAR,  0.  J.  On  the  27th  day  of  Feb- 
ruary, 1890,  respondent  and  appellant  entered 
into  a  written  contract  wherein  respondent 
p.greed  to  sell  the  appellant  certain  real  estate 
for  the  sum  of  ?2,500,  one-third  of  which  was 
paid  at  the  time  of  the  execution  of  the  con- 
tract; appellant  to  pay  the  balance  of  tlie  pur- 
chase price  in  two  equal  installments,  the  first 
of  which  was  to  be  paid  on  the  27th  day  of 
May,  1890,  and  the  second  on  the  27th  day 
of  August,  1890.  Time  wns  expressly  made 
the  essence  of  the  contract.  The  appellant 
paid  no  part  of  the  purchase  price,  except  the 
sum  which  was  paid  at  the  time  the  con- 
ti'act  was  executed.  It  does  not  appear  that 
defendant  entered  into  possession  of  the 
property,  or  exercised  any  control  over  it. 
On  November  14,  1S92,  suit  was  commencea 
by  the  respondent  to  recover  a  money  judg- 
ment against  the  appellant  for  the  amount 
of  the  two  unpaid  installments,  Avith  in- 
terest. The  complaint  simply  alleged  the 
making  of  t\\e  con-tract,  failm-e  to  pay,  the 
ownership  of  the  property,  and  the  tender 
of  a  good  and  sufficient  deed  prior  to  the 
commencement  of  the  action.  A  demiu'rer 
was  interposed  to  the  complaint  on  the 
ground  that  it  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action.  The  de- 
murrer was  oveiTuled,  and  the  defendant 
answered,  alleging  possession  in  the  re- 
spondent, but  denying  his  power  to  give 
^ood  title.  Alleging  that  respondent  had 
never  demanded  of  appellant  the  contract 
price  of  the  land  at  any  time  prior  to  Novem- 
ber 14, 1892,  the  date  of  the  commencement  of 
the  action,  and  never  tendered  to  appellant 
any  deed  or  conveyance  purporting  to  con- 
vey said  land  ujitil  said  14th  "day  of  Novem- 
ber, 1892,  and  never  at  any  time  conveyed 
said  premises;  that,  long  prior  to  said  last- 
named  date,  appellant  had  informed  and 
notified  respondent  that  he  did  not  have  or 
claim  any  further  interest  in  said  property, 
and  that  he  would  not  pay  any  further  in- 
stallment provided  for  by  said  contract,  and 
that  the  plaintiff  did  not,  up  to  said  Novem- 
ber 14,  1892,  assert  any  further  right  to  the 
balance  of  said  contract  iirice,  nor  dissent 
to  nor  deny  said  claim  of  defendant  that  he 
was  no  longer  bound  by  said  contract;  and 
that  long  prior  to  said  last-named  date  the 
plaintiff  had  exercised  said  option  reserved 
to  him  under  said  contract,  and  had  elected 
to  rescind  said  contract,  and  to  retain  as  a 


forfeit  the  first  payment  that  had  been 
made  to  him  by  the  di'fcndant  thereunder, 
aforesaid.  At  the  outset  of  the  trial,  ap- 
pellant objected  to  the  introduition  of  any 
testimony  in  behalf  of-  the  plaintiff  on  the 
ground  that  no  cause  of  action  was  stated 
in  the  complaint.  This  objection  was  over- 
ruled. At  the  conclusion  of  respondent's 
testimony,  appellant  moved  for  a  nonsuit, 
which  motion  was  overruled.  Thereupon, 
he  rested  upon  his  motion,  and  did  not  offer 
any  testimony;  and  the  judge  instructed  the 
juiy  to  bring  in  a  verdict  against  the  appel- 
lant for  the  balance  of  the  contract  price, 
with  interest;  which  being  done,  judgment 
was  entered  thereon,  from  which  judgment 
appellant  has  appealed.  At  the  conunence- 
ment  of  the  action  the  appellant  moved  to 
have  the  case  transferred  to  the  equity  calen- 
dar, which  motion  was  denied.  The  demiu'- 
rer  and  the  motion  for  a  nonsuit  raised  sub- 
stantially the  same  questions. 

Tlie  judgment  in  this  case  will  have  to  be 
reversed,  in  any  event,  for  under  its  terms  the 
respondent  recovers  the  full  purchase  price, 
and  is  allowed  to  retain  the  land  which  rep- 
resented the  piu'chase  price.  In  this  case 
these  are  dependent  obligations  upon  which 
the  respondent  is  suing.  When  the  first  in- 
stallment became  due,  he  could  have  recov- 
ered the  amount  then  due  as  upon  an  inde- 
pendent contract;  but  having  elected  to  wait 
until  the  last  installment  became  due,  and 
upon  the  payiuent  of  which  defendant  would 
be  entitled  to  a  deed,  the  obligations  become 
dependent.  They  all  relate  back  to  tlie  con- 
tract, and  respondent  cannot  sustain  an  action 
for  either  installment  without  proof  of  per- 
formance or  readiness  to  perform  on  his  part. 
McCroskey  v.  Ladd,  (Cal.)  31  Pac.  558,  and 
cases  cited.  In  that  case  the  cotu't  said: 
"There  is  but  one  single  catise  of  action, — 
one  and  indivisible.  The  defendant,  if  he 
would  maintain  his  deed,  must  pay  all;  and 
the  plaintiff,  if  he  would  recover,  must  show 
such  a  performance  on  his  part  as  would  en- 
title him  to  all  the  unpaid  consideration."  It 
is  not  enough  that  the  deed  was  tendered 
at  any  particular  time,  but  the  tender  must 
be  kept  good  so  that  it  maj'  be  taken  into  con- 
sideration in  the  entry  of  the  judgment. 
Plaintiff  here  simply  shows  that  the  tender 
had  been  made  prior  to  the  commencement 
of  the  action,  and  it  is  therefore  insufficient 
excepting  on  the.  theory  that  the  judgment 
could  be  rendered  independently  of  the  per- 
formance of  his  part  of  the  cont-act  by  the 
vendor,  which  would  result  in  allowing  the 
.vendor  to  keep  both  the  money  and  the  land. 
On  that  proposition  we  quote  from  Warvelle 
on  "\'endors,  (page  9C>1:)  "There  are  cases, 
both  in  England  and  the  United  States, 
where,  on  the  vendee's  default,  the  vendor, 
having  offered  to  perform,  has  been  permit- 
ted to  recover  as  damages  the  whole  purchase 
price.  The  injustice  of  such  a  measure,  how- 
ever, is  apparent  on  its  face,  for  it  gives  the 
vendor  his  land,  as  well  as  its  value,  and  is 


278 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


not  now  regarded  as  a  correct  rule  in  eitlier 
counti-y-"     The  rule  in  such  cases  is  that  the 
vendor  has  a  right  to  the  fruits  of  his  bar- 
gain, and  is  entitled  to  compensation  for  any 
loss  he  may  suffer  by  reason  of  its  noncon- 
summation.     What  his  damages  are,  in  such 
circumstances,  must  be  alleged  and  proven, 
like  any  other  fact  in  the  case.     Under  one 
sot   of  circumstances,   the   measure  of  dam- 
ages might  be  one  thing,  and  under  other  cir- 
cumstances the  measure  might  be  governed 
by  an  entirely  different  rule.     The  land  may 
have  deteriorated  in  value,  and  his  damages 
would  be  great,  or  it  might  have  increased  in 
value,  and  the   damages  would  be  nominal. 
As  is  well  argued  by  the  appellant  in  this 
case,  so  far  as  the  complaint  reveals,  the  land 
may  be  worth  as  much  or  more  than  it  was 
when  the  agi-eement  was  executed;  and  the 
respondent,  having  received  an  advance  pay- 
ment,  which   is    forfeited,   may  actually   be 
benefited.     The  cases  cited  in  Warvelle  fully 
sustain  the  announcement  in  the  text,  both  as 
to  the  unfairness  of  allowing  the  vendor  to 
retain  the  land  and  the  money,  and  as  to  the 
measure    of    damages.     In    Railroad    Co.  v. 
Evans,  6  Gray,  25,   it  was  held  that,  in  an 
action  at  law  by  the  vendor  to  recover  dam- 
ages for  the  breach  of  a  contract  for  the  sale 
of  land,  the  measm-e  of  damages  is  not  the 
contract  price,   but    the  difference  between 
that  price  and  the  price  for  which  the  land 
could    have  been  sold    at    the  time  of    the 
breach.     Under  this  rule,  which  seems  to  us 
to    be  an  equitable  one,  and  one  which    Is 
adopted    by  many  com-ts,  the  complaint    is 
plainly  deficient.     The  case  last  above  cited 
also  holds  that  a  vendor  may  enforce  in  equi- 
ty the  specific  performance  of  a  written  con- 
tract for  the  sale  of  land.     In  fact,  the  pre- 
vailing modern  authority  is  that  in  a  case 
of  this  kind  the  vendor  can  either  sue  at  law 
for  damages,  or  resort  to  equity  for  specific 
performance.     Mr.  Pomeroy,  in  his  work  on 
Contracts,  (page  6,)  bases  his  adherence  to  this 
doctrine  on  the  ground   of  mutuality.     The 
remedy  which  is  enjoyed  by  one  party  to  a 
contract  must  be  enjoyed  by  the  other,  and 
as  an  example  he  gives  the  simplest  form  of 
contract  for  the  sale  of  land,  when  the  vendor 
agrees  to  convey,  and  the  pui'chaser  merely 
promises  to  pay  a  certain  sum  as  the  price. 
Since  the  latter  may,  by  a  suit  at  equity,  c(  ^- 
pel  the  execution  and  delivery  of  the  deed, 
the  former  may  also,  by  a  similar  suit,  en- 
force the  undertaking  of  the  vendee,  although 
the  substantial  part  of  his  relief  is  the  re- 
covery of  money.     "A  suit  in  e<iuity  against 
the  vendee,  to  compel  a  specific  execution  of 
a  contract  of  sale,  while  in  effect  an  action 
for  the  purchase  money,  has  nevertheless  al- 
ways been  sustained  as  a  part  of  the  appro- 
priate and  acknowledged  jm-isdiction  of  such 
com-t,  although  the  vendor  has  in  most  cases 
another  remedy  by  an  action  at  law  upon  the 
agreement."    Warv.  "Vend.  pp.  770,  780,  and 
cases    cited.     So   that,   considering   it  either 
as  a  legal  or  equitable  action,  and  consider- 


ing the  complaint  amended  so  as  to  incorpor- 
ate the  allegations  of  tender  sought  to  be  set 
up  in  the  reply,  the  action  must  equally  faiU 
for  the  complaint,  on  its  face,  shows  such  a 
delay  on  the  part  of  the  respondent  in  bring- 
ing his  action    that,  unexplained,  it  amounts 
to  a  waiver  of  respondent's  rights  under  the 
contract,  and  an  acceptance  of  the  forfeiture. 
"The  com't  of  chancery  was  at  one  time  in- 
clined to  neglect  all  consideration  of  time  in 
the    specific    performance    of    contracts    for 
sale,   not  only   as   an   original   ingredient   in 
them,  but  as  affecting  them  by  way  of  laches. 
But  it  is  now  clearly  established  that  the  de- 
lay of    eitlier  party  in    not    performing    its 
terms  on  liis  part,  or  in  not  prosecuting  his 
right  to  the  interference  of  the  court  by  the 
institution  of  an  action,  or,  lastly,  in  not  dili- 
gently prosecuting  his  action,  when  instituted,, 
may  constitute  such  laches  as  will  disentitle 
him  to  the  aid  of  the  court,  and  so  amount, 
for  the  purpose  of  specific  performance,  to- 
an  abandonment,  on    his  part,  of    the    con- 
tract."    Fry,  Spec.  Perf.  §  1070.     "The  doc- 
trine of  the  court  thus  established,  therefore, 
is  that    laches  on  the  part  of    the  plaintiff, 
(whether  vendor  or  purchaser,)  either  in  exe- 
cuting his  part  of  the  contract,  or  in  apply- 
ing to  the  court,  will  debar  him  from  relief. 
'A  party  cannot  call  upon  a  coiu"t  of  equity 
for  specific  performance,'  said  Loi'd  Alvanley, 
M.  R.,  (u)  'unless  he  has  shown  himself  ready, 
desirous,  prompt,  and  eager.'     Or,  to  use  the 
language   of   Lord   Cranworth,    'Specific  per- 
formance is  relief  which  tliis  court  will  not 
give,  unless  in  cases  where  the  parties  seek- 
ing it  come  promptly,  as  soon  as  the  nature 
of  the  case  will  permit.' "    Id.  §  1072.    To  the 
same  effect,  Pom.  Cent.  §  408,  and  cases  cited. 
It  is  true  that  a  few  of  the  states,  notably 
Ohio,  hold  that  the  laches  must  fall  outside 
of  the  statutes  of  limitation,  but  the  gi-eat 
weight  of  authority,  as  we  have  been  able  to 
gather  it  from  the  cases,  is  to  the  contrary;, 
and  relief  has  been  refused  on  the  principle 
that  acquiescence  for  an  unreasonable  length 
of  time  after  the  party  was  in  a  situation  to- 
enforce  his  right,  under  the  full  knowledge 
of    the  facts,  was  evidence  of    a  waiver  or 
abandonment  of    right,  and  what    shall    be 
deemed  a  reasonable  time  must  be  determined 
from   the   circumstances  of   the   case.      Six 
months,  in  some  cases,  might  be  as  unreason- 
able as  six  years  in  others.     It  must  be  borne 
in  mind  that  a  distinction  is  made,  in  the  dis- 
cussion of  tlie  cases,  between  the  cases  where- 
time  is  made  the  essence  of  the  contract,  and 
where  it  is  not;  and  the  conclusion  deduced 
from  the  authorities    is    that    where  time  is- 
made  the  essence  of  the  contract  the  appar- 
ent delay  or  omission  of  duty   must  be  ex- 
plained, or  the  relief  will  not  be  granted. 

In  this  case  time  was  made  the  essence  of 
the  contract,  by  express  terms.  The  com- 
plaint shows  that  there  was  no  attempt  to  en- 
force the  claihi  until  two  years  and  three 
months  after  the  contract  matured,  and  makes, 
no  explanation  whatever  for  the  delay.     Nor 


BKEACH  BY  VENDEE  OF  AGREEMENT  TO  BUY. 


279 


are  the  avemionts  of  the  complaint  strength- 
ened by  the  pruufs,  for  the  proofs  show  that 
no  demand,  of  any  kind  wliatever,  had  been 
made,  on  the  part  of  respondent,  imtil  the 
day  the  suit  was  brought.  The  respondent 
should  not  be  allowed  to  speculate  in  values, 
so  far  as  this  contract  is  concerned;  to  wait 
and  see  whether  the  value  of  tlie  land  would 
enhance  or  depreciate  before  he  made  his 
election  either  to  enforce  the  performance 
or  accept  the  forfeiture.  We  think  the  pro- 
vision of  this  contract,  that,  "if  the  said 
party  of  the  second  part,  his  heirs,  adminis- 
trators, or  assigns,  shall  fail  to  pay  the  full 
amount  of  either  of  the  above-specified  in- 
stallments and  interest  when  the  same  shall 
become  due,  as  above  specified,  the  said  party 
of  the  first  part  shall  have  the  right,  at  their 
option,  to  rescind  and  cancel  this  agreement, 
and  in  case  of  such  rescission  and  cancellation 
all  rights  of  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  shall  be  terminated, 
and  all  payments  heretofore  made  on  this 
contract  shall  be  forfeited,"  fairly  construed, 
guaranties  to  the  respondent  a  right  which 


it  must  exercise  at  the  maturity  of  the  con- 
tract,—the  time  when  he  woxild  have  a  right 
to  make  the  election;  and,  as  he  did  not  pro- 
ceed to  enforce  the  conti-act,  the  appellant  had 
a  right  to  presume  that,  inasmuch  as  he  had 
taken  no  altirmative  action,  by  tendering  the 
deed,  he  had  elected  the  remedy  which  was 
consistent  with  silence,  namely,  the  accept- 
ance of  the  forfeiture;  and,  considering  the 
rapid  changes  in  value  of  the  real  estate  in 
this  comitry,  we  thinlv  an  unexplained  delay 
of  two  and  a  quarter  years  ought  to  prevent 
the  respondent  from  asserting  his  claim  in  a 
court  of  equity. 

The  complaint,  therefore,  being  insufficient, 
either  at  law  or  equity,  appellant's  demurrer 
should  have  been  siLStained.  This  conclusion 
renders  unnecessary  the  discussion  of  the  oth- 
er errors  assigned.  For  the  reasons  given, 
the  judgment  will  be  reversed,  with  instruc- 
tions to  sustain  appellant's  demurrer  to  the 
complaint. 

STILES,  HOYT,  SCOTT,  and  ANDERS, 
JJ.,  concur. 


280 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


McGUINNESS  v.  WHALEN. 

(IS  Atl.  158,  16  R.  I.  558.) 

Supreme  Court  of  Rhode  Island.    July  13,  1SS9. 

Assumpsit.  On  demurrer  to  the  declara- 
tion. 

Echoin  B.  IIcGuinness  and  John  Doran, 
for  plaintiff.  Edward  D.  Bassett,  for  de- 
fendant. 

DURFEE,  C.  J.  The  declaration  sets  forth 
that  at  an  administrator's  sale  at  auction,  held 
Pebiiiary  28,  A.  D.  1885,  by  William  W. 
Nichols,  administrator  de  bonis  non  on  tlie 
-estate  of  John  Charlton,  deceased,  all  the 
rigiit,  title,  and  interest  of  the  decedent  in 
certain  land  described  was  struck  off  to  the 
defendant  for  i$3,100  bid  by  him,  said  sum 
bein<^  the  highest  bid  therefor;  that  the  de- 
fendant paid  $150  down  as  earnest  money; 
that  afterwards,  at  a  time  appointed,  the  ad- 
ministrator was  ready  with  his  deed  to  con- 
vey the  land  in  pursuance  of  tlie  sale,  but  the 
defendant  refused  to  accept  it,  and  pay  over 
the  residue  of  said, 153, 100;  thatsubsrquently, 
on  May  26,  A.  D.  1885,  the  property  was 
again  put  up  at  auction  by  said  administra- 
tor, and  struck  off  to  William  H.  Wasliburn 
for  $2,150,  the  highest  bid  therefor,  and  con- 
veyed to  Inm  for  tiiat  sum.  The  declaration 
then  proceeds  as  follows,  to-wit:  "And  the 
]ilaintiff  avers  that  on  the  21st  day  of  Novem- 
ber, 1887,  he  was  appointed  administrator 
de  holds  non  of  the  est;ite  of  John  Cliarl- 
ton,  deceased,  in  the  place  and  stead  of  said 
Nichols,  removed,  whereby  the  defendant 
became  liable  and  ))romised  to  pay  to  the 
plaintiff  the  difference  between  said  sum  of 
$0,100  and  the  costs  of  said  second  auction 
sale,  viz.,  $40.17,  and  the  sum  of  $2,150, 
amounting  to  the  sum  of  $990.17."  The 
ileclaration  also  contains  the  common  money 
count.  The  defendant  lias  demurred  to  the 
declaration  generally,  but  both  parties  have 
treated  the  demurrer  as  if  it  were  simply  a  de- 
murrer to  the  special  count.  We  will  so  treat 
it.  The  question,  as  it  has  beenaigued  to  us, 
is. whether  the  count  is  good  as  a  count  upon 
a  promise  to  be  implied  from  the  facts  alleged. 
We  think  not.  The  contract  which  the  de- 
fendant entered  into  v^'lien  he  made  his  bid 
was  a  contract  to  pay  the  price  bid  by  him  for 
the  premises  upon  receiving  a  deed  thereof, 
and,  if  on  tender  of  the  deed  he  refused 
to  complete  the  payment,  he  committed  a 
breach  of  said  contract,  and  laid  himself 
liable  to  an  action  upon  it  for  damages. 
In  such   action  the  measure  of  damage   is 


the  loss  to  the  vendor  from  the  default 
of  the  vendee,  and  it  may  be  that  the 
jury,  upon  proof  of  the  second  sale,  wouhl 
tind  the  damages  to  be  the  difference  between 
the  two  bids  and  the  expense  of  the  second 
sale;  but  the  question  would  be  purely  one  of 
damages,  and  they  would  not  be  shut  up  to 
thatamount.  McCombs  v.  ISIcKennan,  2  Watts 
&  S.  216.  In  order  to  make  the  vendee  liable 
in  assumpsit  for  such  difference  and  expense, 
in  case  of  his  default,  it  should  be  made  a 
coiiditiou  of  the  sale  that  in  such  case  the 
property  shouM  be  resold,  and  the  vendee  held 
to  pay  such  difference  and  expense.  Adams 
V.  McMillan,  7  Port.  (Ala.)  73,  was  a  case  of 
real  estate  sold  at  auction,  and  afterwards  re- 
sold on  default  bj'  the  vendee.  Tiie  declara- 
tion contained  a  count  like  the  special  count 
here.  The  court  lield  that  wheie  a  declara- 
tion does  not  aver,  as  part  of  the  contract  of 
Eale,  a  condition  that  the  land  shall  be  re- 
sold in  case  of  such  default,  but  only  al- 
leges the  difference  in  price  of  tiie  two  sales, 
and  as  a  consequence  of  the  vendee's  breach 
of  his  eontract  a  liability  on  his  part  to  pay 
that  difference,  being  framed  on  the  supposi- 
tion that  the  difference  is  recoverable  as  on  a 
contract,  and  not  as  unliquidated  damages, 
the  declaration  will  be  bad  on  demurrer. 
Kobinson  v.  Garth,  6  Ala.  204.  The  plaintiff 
contends  tliat  the  mode  of  declaring  here 
used  is  proper,  because  the  sale  was  judicial, 
and  in  such  sales  the  defaulting  vendee  is  lia- 
ble for  the  deiiciency  on  resale,  whether  the 
terms  of  sale  so  provide  or  not.  An  admin- 
istrator's sale,  however,  under  our  statutes,  is 
not  a  judicial  sale,  as  was  decided  by  Judge 
Story  in  Smith  v.  Arnold,  5  Mason,  414,  420. 
It  has  been  held  in  Alabamathat  purchasers  at 
official  sales  who  make  default  are  liable  by 
imniied  contract  for  the  deficit  on  resale. 
Lainkin  v,  Crawford,  8  Ala.  153;  Hutton  v. 
Williams,  35  Ala.  503.  513.  We  do  not  find 
the  doctrine  recognized  elsewhere,  (2  Freem. 
Ex'ns,  2d  Ed.,  §  313;)  nor,  in  our  opinion, 
can  an  administrator's  sale  be  regarded  as  an 
official  sale.  In  some  states  the  defaulting 
purchaser  is  liable  for  "the  deficiency  arising 
on  resale"  bystatute.  Alexander  v.  Herring, 
54  Ga.  200.  We  have  no  such  statute.  The 
subject  of  the  sale  under  which  the  question 
here  arises  was  real  estate,  the  title  to  which 
could  not  pass  to  the  purchaser  without  deed. 
AVHiether,  if  the  subject  had  been  goods  and 
chattels,  the  same  mode  of  declaring  would 
have  been  bad,  is  a  question  on  which  we  ex- 
press no  opinion.  Demurrer,  regarded  as  a 
demurrer  to  the  special  count,  sustained. 


BREACH  BY  VENDEE  OF  AGREEMENT  TO  BUY. 


281 


^         ALLEN  V.  MOHN. 

(49  N.  W.  52,  86  Mich.  328.) 
Supreme  Court  of  Michigan.    June  5,  1891. 

Error  to  circuit  court,  Branch  county; 
JJoAH  P.  LovERiDor:,  Jud^e. 

F.  A.  Lyon,  for  appellant.  W.  ll.Lock- 
■erby,  for  appellee. 

GRANT,  J.  Plaintiff  and  rlefenrlant 
made  a  contract,  by  which  plaintiff  agreed 
to  sell  to  defendant  certain  real  estate. 
The  contract  was  made  in  November,  1SS(5. 
In  September,  1S90,  defendant  informed 
plaintiff  that  he  could  not  go  on  with  the 
contract,  refused  to  pay  the  interest 
which  was  then  due.  and  said  that  he 
would  give  up  the  contract.  "While  the  tes- 
timony is  not  clear  as  to  the  circum- 
stances under  which  plaintiff  took  posses- 
sion of  tlie  land,  it  appears  to  be  conced- 
ed by  both  parties  that  defendant  aban- 
doned the  premises,  and  plaintiff  there- 
upon took  possession.  The  contract  con- 
tained the  following  clause:  "It  is  mutu- 
ally agreed  between  the  parties  that  the 
said  party  of  the  second  part  shall  have 
possession  of  said  premises  on  and  after 
date  hereof,  and  he  shall  keep  the  same  in 
as  good  condition  as  they  are  at  the  date 
hereof,  until  the  said  sum  shall  be  paid  as 
aforesaid;  and,  if  said  party  of  the  second 
part  shall  fail  to  perform  this  con  tract, 
or  any  part  of  the  same,  said  party  of  the 
first  part  shall, immediately  after  such  fail- 
ure, have  a  right  to  declare  thesame  void, 


and  retain  whatever  may  have  been  paid 
on  such  contract,  and  all  improvements 
that  may  have  been  made  on  said  prem- 
ises, and  may  consider  and  treat  the  party 
of  the  second  part  as  his  tenant  holding 
over  without  permission,  and  niay  take 
immediate  possession  of  the  premises,  and 
remove  the  party  of  the  second  part  there- 
from." Upon  the  abandonment  of  the 
contract  and  of  the  premises  by  defend- 
ant plaintiff  had  his  choice  of  three  reme- 
dies: (1)  Bill  for  specific  performance;  (2) 
suit  at  law  to  recover  tiie  purchase  price; 
and  (3)  a  repossession  of  the  premises 
and  a  suit  to  recover  damagesfor  a  breach 
of  the  contract.  The  latter  remedy  is  sup- 
ported by  thefollowing  authorities:  Kail- 
road  V.  Evans,  6  Ura3',  25;  Griswold  v.  Sa- 
bin,  .51  N.  II.  170;  jMeason  v.  Kaine. 07  Pa. 
St.  12G,  03  Pa.  St.  :335;  Porter  v.  Travis, 
40  Ind.  550;  Wasson  v.  Palmer,  17  Nub. 
330,  22  N.  W.  Eep.  773.  In  such  case  the 
measure  of  damages  is  the  difference  be- 
tween the  contract  price  and  the  value 
of  the  land  at  the  time  of  abandonment 
and  re-entry,  less  Vv'hat  has  been  paid. 
This  rule  is  just,  and  pUices  vendor  and 
vendee  upon  a  footing  of  equality  and 
mutuality.  In  order  to  deprive  the  ven- 
dor of  this  remedy  it  must  either  be  ex- 
cluded by  the  terms  of  the  contract,  or 
waived  by  his  acts  and  conduct.  In  this 
case  the  contract  does  not  exclude  it,  nor 
has  the  plaintiff  waived  it.  The  circuit 
court  was  in  error  in  directing  a  verdict 
for  the  defendant.  Judgment  is  reversed, 
with  costs,  and  a  new  trial  ordered.  The 
other  justices  concurred. 


282 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


FLUREAU  V.  THORNHILL. 

(2  W.  Bl.  1078.) 

Easter  Term,  16  Geo.  III.  C.  P. 

The  plaintiff  bought  at  an  auction  a  rent 
of  £26  Is.  per  auu.  for  a  term  of  thirty-two 
years,  issuing  out  of  a  leasehold  house,  which 
let  for  £31  6s.  The  sale  was  on  the  10th  of 
October,  1775.  The  price  at  which  it  was 
knocked  down  to  him  was  £270,  and  he  paid  a 
deposit  of  20  per  cent.,  or  £54.  On  looking 
into  the  title,  the  defendant  could  not  make 
it  out;  but  offered  the  plaintiff  his  election, 
either  to  take  the  title  with  all  its  faults,  or 
to  receive  back  his  deposit  with  interest  and 
costs.  But  the  plaintiff  insisted  on  a  farther 
sum  for  damages  in  the  loss  of  so  good  a 
bargain;  and  his  attorney  swore,  he  believed 
the  plaintiff  had  been  a  loser  by  selling  out 
of  the  stocks  to  pay  the  purchase  money,  and 
their  subsequent  rise  between  the  3d  and  the 
10th  of  November;  but  named  no  particular 
sum.  Evidence  was  given  by  the  defendant, 
that  the  bargain  was  by  no  means  advanta- 
geous, all  circumstances  considered;  and  the 
auctioneer  proved  that  he  had  orders  to  let 
the  lot  go  for  £2.50.  The  defendant  had  paid 
the  deposit  and  interest,  being  £54  15s.  6d. 
into  court:  But  the  jury  gave  a  verdict,  con- 
trary to  the  directions  of  DE  GREY,  C.  J.,  for 
£74  15s,  6d.,  allowing  £20  for  damages. 

Davy  moved  for  a  new  trial,  against  which 
Glyn  shewed  cause;    and  by— 


DE  GREY,  C.  J.  I  think  the  verdict  wrong 
in  point  of  law.  Upon  a  contract  for  a  pur- 
chase, if  the  title  proves  bad,  and  the  vendor 
is  (without  fraud)  incapable  of  making  a  good 
one,  I  do  not  think  that  the  purchaser  can 
be  entitled  to  any  damages  for  the  fancied 
goodness  of  the  bargain,  which  he  supposes 
he  has  lost. 

GOULD,  J.,  of  the  same  opinion. 

BLACKSTONE,  J.,  of  the  same  opinion. 
These  contracts  are  merely  upon  condition, 
frequently  expressed,  but  always  implied,  that 
the  vendor  has  a  good  title.  If  he  has  not, 
the  return  of  the  deposit,  with  interest  and 
costs,  is  all  that  can  be  expected.  For  curios- 
ity, I  have  examined  the  prints  for  the  price 
of  stock  on  the  last  3d  of  November,  when 
three  per  cent.'s  sold  for  871/2.  About  £310 
must  therefore  have  been  sold  to  raise  £270. 
And  if  it  costs  £20  to  replace  this  stock  a 
week  afterwards  (as  the  verdict  supposes), 
the  stocks  must  have  risen  near  seven  per 
cent,  in  that  period,  whereas  in  fact  there 
was  no  difference  in  the  price.  Not  that  it  is 
material;  for  the  plaintiff  had  a  chance  of 
gaining  as  well  as  losing  by  a  fluctuation  of 
the  price. 

NARES,  J.,  hesitated  at  granting  a  new 
trial;  but  next  morning  declared  that  he  con- 
curred with  the  other  judges. 

Rule  absolute  for  a  new  trial,  paying  the 

costs. 


BKEACH  BY  VENDOR  OF  AGREEMENT  TO  SELL  AND  CONVEY. 


283 


HOPKINS  V.  LEE. 

(6  Wheat.  109.) 

Supreme   Court  of  the   United   States.    Feb. 
Tei-m,  1821. 

Error  to  the  circuit  court  for  the  District 
of  Columbia. 

This  was  an  action  of  covenant,  brought  by 
the  defendant  in  error,  Lee,  against  the  plain- 
tiff in  error,  Hoplvins,  to  recover  damages  for 
not  conveying  certain  tracts  of  military  lands, 
which  the  plaintiff  in  error  had  agreed  to  con- 
vey, upon  the  defendant  in  error  relieving  a 
certain  incumbrance  held  by  one  Rawleigh 
Colston,  upon  an  estate  called  Hill  and  Dale, 
and  which  Lee  had  previously  granted  and 
sold  to  Hopkins,  and  for  which  the  military 
lauds  in  question  were  to  be  received  in  part 
payment.  The  declaration  set  forth  the  cove- 
nant, and  averred  that  Lee  had  completely 
removed  the  incumbrance  from  Hill  and  Dale. 
The  defendant  below  pleaded:  (1)  That  he 
bad  not  completely  removed  the  incuml)rance; 
and  (2)  that  he  (the  defendant  below)  had 
never  been  required  by  Lee  to  convey  the 
military  lands  to  him;  and  on  these  pleas  is- 
sues were  joined.  Upon  the  trial,  Lee,  in  or- 
der to  prove  the  incumbrance  in  question  was 
removed,  offered  in  evidence  to  the  jury  a 
record  of  the  proceeding  m  chancery,  on  a 
bill  filed  against  him  in  the  circuit  court,  by 
Hopkins.  The  bill  stated  that  on  the  23d 
of  January,  1807,  the  date  of  the  agreement 
on  which  the  present  action  at  law  was 
brought,  Hopkins  purchased  of  Lee  the  estate 
of  Hill  and  Dale,  for  which  he  agreed  to  pay 
$18,000,  namely,  $10,000  in  military  lands,  at 
settled  prices,  and  to  give  his  bond  for  the 
residue,  payable  in  April,  1809.  That  Lee,  in 
pursuance  of  this  agreement,  selected  certain 
military  lands  in  the  bill  mentioned.  That  at 
the  time  of  the  purchase  of  Hill  and  Dale,  it 
was  mortgaged  to  Colston  for  a  large  sum, 
which  Lee  had  promised  to  discharge,  but 
had  failed  so  to  do,  in  consequence  of  which 
Hopkins  had  paid  off  the  mortgage  himself. 
The  bill  then  claimed  a  large  sum  of  money 
from  Lee,  for  having  removed  this  incum- 
brance, and  prayed  that  the  defendant  might 
be  decreed  to  pay  it,  or  in  default  thereof  that 
the  claimant  might  be  authorized,  by  a  de- 
cree of  chancery,  to  sell  the  military  lands, 
which  he  considered  as  a  pledge  remaining  in 
his  hands,  and  out  of  the  proceeds  thereof 
to  pay  himself.  On  the  coming  in  of  Lee's 
answer,  denying  several  of  the  allegations  of 
the  bill,  the  cause  was  referred  to  a  master, 
who  made  a  report,  stating  a  balance  of 
$427.77,  due  from  Hopkins  to  Lee.  This  re- 
port was  not  excepted  to,  and  the  court,  after 
referring  to  it,  proceeded  to  decree  the  pay- 
ment of  the  balance.  To  this  testimony  the 
defendant  in  the  present  action  objected,  so 
far  as  respected  the  reading  of  the  master's 
report,  and  the  decretal  order  thereon;  but  the 
objection  was  overruled  by  the  court  below, 


and  the  evidence  admitted.  The  counsel  for 
the  plaintiff'  in  error  then  prayed  the  court 
to  instruct  the  jury,  that  in  the  assessment 
of  damages,  they  should  take  the  price  of  the 
military  lands  as  agreed  upon  by  the  parties 
in  the  articles  of  agreement  upon  which  the 
action  was  brought,  as  the  measure  of  dam- 
ages for  the  breach  of  covenant.  But  the 
court  refused  to  give  this  instruction,  and 
directed  the  jury  to  Hke  the  price  of  the 
lands,  at  the  time  they  ought  to  have  been 
conveyed,  as  the  measure  of  damages.  To 
this  instruction  the  plaintiff  in  error  excepted; 
and  a  verdict  and  judgment  thereon  being 
rendered  for  the  plaintiff"  below,  the  cause 
was  brought  by  writ  of  error  to  this  court. 

Pinkney  &  Swann,  for  plaintiff  in  error. 
Jones  &  Lee,  for  defendant  in  error. 

LIVINGSTON,  J.  The  first  question  which, 
this  court  has  to  consider  is,  whether  the  pro- 
ceedings in  chancery  Avere  properly  admitted 
in  evidence  in  the  court  below. 

It  is  not  denied,  as  a  general  rule,  that  a 
fact  which  has  been  directly  tried  and  de- 
cided by  a  court  of  competent  jurisdiction, 
cannot  be  contested  again  between  the  same 
parties,  in  the  same  or  any  other  court. 
Hence,  a  verdict  and  judgment  of  a  court  of 
record  or  a  decree  in  chancery,  although  not 
binding  on  strangers,  puts  an  end  to  all  fur- 
ther controversy  concerning  the  points  thus 
decided  between  the  parties  to  such  suit.  la 
this  there  is  and  ought  to  be  no  difference  be- 
tween a  verdict  and  judgment  in  a  court  of 
common  law  and  a  decree  of  a  court  of  equity. 
They  both  stand  on  the  same  footing,  and 
may  be  offered  in  evidence  under  the  same 
limitations;  and  it  would  be  difficult  to  as- 
sign a  reason  why  it  should  be  otherwise. 
The  rule  has  found  its  way  into  every  sys- 
tem of  jurisprudence,  not  only  from  its  obvi- 
ous fitness  and  propriety,  but  because  Avith- 
out  it  an  end  could  never  be  put  to  litigation. 
It  is,  therefore,  not  confined,  in  England  or 
in  this  country,  to  judgments  of  the  same 
court,  or  to  the  decisions  of  courts  of  con- 
current jurisdiction,  but  extends  to  matters 
litigated  before  competent  tribunals  in  for- 
eign countries.  It  applies  to  sentences  of 
courts  of  admirany,  to  ecclesiastical  tribunals, 
and,  in  short,  to  every  court  which  has  prop- 
er cognizance  of  the  subject-matter,  so  far  as 
they  profess  to  decide  the  particular  matter 
in  dispute.  Under  this  rule,  the  decree  in 
this  case  was  proper  evidence,  if  it  decided,  or 
professed  to  decide,  the  same  question  Avhich 
was  made  on  the  trial  at  law.  For  to  points 
which  came  only  collateraly  under  consid- 
eration, or  were  only  incidentally  under  cog- 
nizance, or  could  only  be  mferred  by  arguing 
from  the  decree,  it  is  admitted  that  the  rule 
does  not  apply.  On  a  reference  to  the  pro- 
ceedings at  law  and  in  chancery,  in  the  case 
now  before  us,  the  court  is  satisfied  that  the 
question  which  arose  on  the  trial  of  the  ac- 


284 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


tion  of  coYonant,  "v\-as  precisely  the  same,  if 
not  exclusively  so,  (altbougli  that  was  not 
necessary,)  as  the  one  which  had  already  been 
directly  decided  by  the  court  of  chancery. 
The  bill,  which  was  filed  by  the  present  plain- 
tiff in  error,  states  that  on  the  23d  of  Jan- 
uary, 1807,  which  is  the  date  of  the  agree- 
ment on  which  the  action  at  law  is  brought, 
Hopkins  purchased  of  Lee  the  estate  of  Hill 
and  Dale,  for  which'  he  was  to  pay  $18,000; 
that  is,  ^10,000  in  military  lauds,  at  settled 
prices,  and  the  remainder  in  bonds,  payable 
in  April,  1809.  That  Lee,  in  pursuance  of 
this  agreement,  selected  certain  military  lands 
in  the  bill  mentioned.  That  at  the  time  of 
the  purchase  of  tlill  and  Dale,  it  was  mort- 
gaged to  Rawleigh  Colston  for  a  large  sum, 
which  Lee  had  promised  to  discharge,  but 
that  he  had  failed  so  to  do,  in  consequence  of 
which  Hopkins  had  paid  the  mortgage  himself. 
The  complainant  then  claims  a  large  sum  from 
Lee,  for  having  removed  this  incumbrance, 
and  prays  that  the  defendant  may  be  decreed 
to  pay  it,  or  in  default  thereof  that  the  com- 
plainant may  be  authorized,  by  a  decree  of  the 
court,  to  sell  the  military  lands,  which  he  con- 
sidered as  a  pledge  in  his  hands,  and  out  of 
the  proceeds  to  pay  himself.  Not  a  single  de- 
mand is  stated  in  the  bill,  except  the  one  aris- 
ing out  of  the  complainant's  extinguishment 
of  the  incumbrance,  which  Lee  had  taken 
upon  himself  to  remove. 

On  Lee's  answer  coming  in,  denying  several 
of  the  allegations  of  the  bill,  the  cause  is 
referred  to  a  master  commissioner,  who,  after 
a  long  investigation,  in  the  presence  of  both 
parties,  and  the  examination  of  many  wit- 
jiesses,  makes  a  report  by  which  Hopkins  is 
made  a  debtor  of  Lee  in  the  sum  of  $427.77. 
On  inspection  of  this  report,  it  will  be  seen 
that  the  chief  if  not  the  only  controversy  be- 
tween the  parties  was,  Avhether  Hill  and  Dale 
had  been  relieved  from  its  incumbrance  to 
Colston,  by  funds  furnished  by  Lee  to  Hop- 
kins for  that  purpose,  and  that,  unless  that 
fact  had  been  found  affirmatively,  a  report 
could  not  have  been  made  in  Lee's  favor. 
The  court,  after  referring  to  this  report,  and 
stating  that  it  had  not  been  excepted  to,  pro- 
■ceeds  to  decree  the  payment  of  this  balance 
by  the  complainant  to  the  defendant.  Froni 
this  summary  review  of  the  proceedings  in 
chancery,  the  conclusion  seems  inevitable 
that  the  chief  if  not  sole  matter  in  litigation 
in  that  suit,  was  Avhether  Hill  and  Dale  had 
been  freed  of  the  incumbrance  to  Colston,  by 
Lee  or  by  Hopkins,  and  that  the  report  and 
subsequent  decree  proceeded  on  the  ground 
and  established  the  fact  that  Lee  had  dis- 
<?harged  it,  which  was  also  the  only  point 
put  in  issue  by  the  first  plea  of  the  defendant, 
in  the  action  of  covenant.  No  rule  of  evi- 
dence, therefore,  is  violated  in  saying  that 
this  decree  was  properly  admitted  by  the  cir- 
cuit court.  But  if  the  decree  were  admissible, 
it  is  supposed  that  the  report  of  the  master 
ought  not  to  have  been  submitted  to  the  jury. 


The  court  entertains  a  different  opinion.  No 
reason  has  been  assigned  why  a  decision  by  a 
proper  and  sworn  olticer  of  a  court  of  chan- 
cery, in  the  presence  and  hearing  of  both 
parties,  according  to  the  acknowledged  prac- 
tice and  usage  of  the  court  on  the  very  mat- 
ters in  controversy,  not  excepted  to  by  either 
party  and  confirmed  by  the  court,  should  not 
be  as  satisfactory  evidence  of  any  fact  found 
by  it,  as  the  verdict  of  a  jury  on  which  a 
judgment  is  afterwards  rendered.  The  ad- 
vantage which  a  verdict  may  be  supposed  to 
possess  over  a  report,  from  its  being  the  de- 
cision of  twelve  instead  of  the  opinion  of  a 
single  man,  is  perhaps  more  than  counterbal- 
anced by  the  time  which  is  allowed  to  a  mas- 
ter for  deliberation  and  a  more  thorough  inves- 
tigation of  the  matters  in  controversy.  But  a 
better  and  more  satisfactory  answer  is,  that  it 
is  the  usual,  known,  and  approved  practice  of 
the  court  to  whose  jurisdiction  the  parties  had 
submitted  themselves.  But  if  this  document 
be  withheld  from  a  jury,  how  are  they  or  the 
court  to  arrive  at  the  grounds  of  the  decree 
or  a  knowledge  of  the  points  or  matters  which 
have  been  decided  in  the  cause?  Without  it, 
the  decree  may  be  intelligible;  but  the 
grounds  on  which  it  proceeds,  or  the  facts 
which  it  means  to  decide,  may  be  liable  to 
much  uncertainty  and  conjecture.  The  re- 
port, therefore,  as  well  as  the  decree  was 
proper  evidence,  not  only  of  the  fact  that 
such  report  and  decree  had  been  made,  but  of 
the  matter  which  they  professed  directly  to 
decide.  We  are  not  now  called  upon  to  say 
whether,  in  those  respects,  they  were  conclu- 
sive, as  they  do  not  appear  to  have  been  of- 
fered with  that  view;  but  without  meaning 
to  deny  to  them  such  effect,  we  only  say, 
which  is  all  that  the  present  case  requires, 
that  they  were  competent  and  proper,  in  the 
absence  of  other  testimony,  to  establish  the 
fact  of  the  removal  of  the  incumbrance  by  the 
defendant  Lee,  from  the  estate  of  Hill  and 
Dale. 

In  the  assessment  of  damages,  the  counsel 
for  the  plaintiff  in  error  prayed  the  court  to 
instruct  the  jury  that  they  should  take  the 
price  of  the  land,  as  agreed  upon  by  the  par- 
ties in  the  articles  of  agreement  upon  which 
the  suit  was  brought,  for  their  government. 
But  the  court  refused  to  give  this  instruction, 
and  directed  the  jury  to  take  the  price  of 
the  lands,  at  the  time  they  ought  to  have 
been  conveyed,  as  the  measure  of  damages. 
To  this  instruction  the  plaintiff  in  error  ex- 
cepted. The  rule  is  settled  in  this  court,  that 
in  an  action  by  the  vendee  for  a  breach  of 
contract,  on  the  part  of  the  vendor,  for  not 
delivering  the  article,  the  measure  of  dam- 
ages is  its  price  at  the  time  of  the  breach. 
The  price  being  settled  by  the  contract,  which 
is  generally  the  case,  makes  no  difference,  nor 
ought  it  to  make  any;  otherwise  the  vendor, 
if  the  article  have  risen  in  value,  would  al- 
ways have  it  in  his  power  to  discharge  him- 
self from  his  contract,  and  put  the  enhanced 


BREACH  BY  VENDOR  OF  AGREEMENT  TO  SELL  AND  CONVEY. 


285- 


value  in  his  own  poclvet.  Nor  can  it  mal^e 
any  difference  in  principle  wlietlier  ttie  con- 
tract be  for  tlie  sale  of  real  or  personal  prop- 
erty, if  tlie  lands,  as  is  the  case  here,  have 
not  been  improved  or  built  on.  In  both  cases 
the  vendee  is  entitled  to  have  the  thing  agreed 


for  at  the  contract  price,  and  to  sell  it  himself 
at  its  increased  value.  If  it  be  withheld,  the 
vendor  ought  to  make  good  to  him  the  differ- 
ence. This  is  not  an  action  for  eviction,  nor 
is  the  court  now  prescribing  the  proper  rule  of 
damages  in  such  a  case.     Judgment  affirmed. 


286 


BREACH  OF  CONTRACTS  RESrECTING  REAL  ESTATE. 


PUMPELLY  V.  PHELPS. 


(40  N.  Y.  64.) 
Court  of  Appeals  of  New  York.    March,  1869. 

Action  for  specific  performance  of  a  con- 
tract to  convey  land,  or  in  the  alternative, 
damages  for  the  breach.  The  plaintiff  had 
judgment  below  for  damages,  and  defend- 
ant appeals. 

John  H.  Reynolds,  for  appellant.  Samuel 
Hand,  for  respondents. 

MASON,  J.  There  has  never  seemed  to 
me  to  have  been  any  very  good  foundation 
for  the  rule,  which  excused  a  party  from  the 
performance  of  his  contract,  to  sell  and  con- 
vey lands,  because  he  had  not  the  title  which 
he  had  agreed  to  convey.  There  seems  to 
have  been  considerable  diversity  of  opinion 
in  the  courts  as  to  the  grounds  upon  which 
the  rule  itself  is  based. 

In  England,  the  rule  seems  to  have  been 
sustained  upon  the  ground  of  an  implied 
outstanding  of  the  parties,  that  the  parties 
must  have  contemplated  the  difficulties  at- 
tendant upon  the  conveyance.  In  the  lead- 
ing case  on  this  subject,  of  Flureau  v.  Thorn- 
hill,  2  W.  Bl.  107S,  Blackstone,  J.,  said: 
"These  contracts  are  merely  upon  condition, 
frequently  expressed,  but  always  implied, 
that  the  vendor  has  a  good  title." 

While  in  this  country  the  rule  is  based  up- 
on the  analogy  between  this  class  of  cases 
and  actions  for  breach  of  covenant  of  war- 
ranty of  title.  Baldwin  v.  Munn,  2  Wend. 
899;  Peters  v.  McKeon,  4  Deuio,  546.  The 
rule  of  damages,  in  an  action  for  a  breach 
of  covenant  of  warranty  of  title,  is  settled  to 
be  the  consideration  paid,  and  the  interest; 
and  yet  this  is  an  arbitrai-y  rule,  and  Avorks 
great  injustice  many  times;  and  the  courts 
met  with  the  greatest  embarrassment  in  set- 
tling it.  These  difiiculties  were  considered, 
and  well  expressed,  in  the  leading  case  in 
this  state,  of  Staats  v.  Ten  Eyck's  Ex'rs,  3 
Gaines,  115,  in  which  the  court  said:  "To 
find  a  rule  of  damages,  in  a  case  like  this,  is 
a  work  of  difliculty;  none  Avill  be  entirely 
free  from  objection,  or  will  not,  at  times, 
work  injustice. 

"To  refund  the  consideration,  even  with  the 
interest,  may  be  a  very  inadequate  compen- 
sation, when  the  property  is  greatly  enhan- 
ced in  value,  and  when  the  money  might 
have  been  laid  out  to  equal  advantage  else- 
where. Yet  to  make  this  increased  value  the 
criterion,  where  there  has  been  no  fraud, 
may  also  be  attended  with  injustice,  if  not 
ruin. 

"A  piece  of  land  is  bought  solely  for  the 
puiiiose  of  agriculture,  and  by  some  unfore- 
seen turn  of  fortune,  it  becomes  the  site  of 
a  populous  city;  after  which  an  eviction 
takes  place.  Every  one  must  perceive  the 
Injustice  of  calling  on  a  bona  fide  vendor  to 
refund  its  value,  and  that  few  foi-tunes  could 
bear  the  <]emand.    Who  for  the  sake  of  one 


hundred  pounds  would  assume  the  hazard 
of  repaying  as  many  thousands,  to  which 
value  the  property  might  rise,  by  causes 
unforeseen  by  either  party,  and  which  in- 
crease in  worth  would  confer  no  right  on  the 
grantor  to  demand  a  further  sum  of  the 
grantee?"  There  is  still  another  class  of 
cases  where  the  rule  of  simply  refunding 
the  purchase-money  and  the  interest  oper- 
ates with  great  hardship  and  injustice  upon 
the  purchaser.  A.  purchases  of  B.  a  city  lot 
for  the  purpose  of  building  himself  a  dwell- 
ing or  buildings  upon  it,  and  takes  from  B. 
a  full  covenant  deed  of  the  premises,  cove- 
nanting to  assure,  warrant  and  defend  the 
title.  The  buildings  are  constructed  at  the 
cost  of  thousands  of  dollars,  and  then  B.  is 
evicted  by  a  paramount  title  ascertained  to 
be  in  some  one  else.  The  recovery  of  the 
money  and  six  years'  interest  is  not  a  vei-y 
just  or  reasonable  return  in  damages  for  the 
law  to  give  to  one  who  holds  a  covenant  to 
make  good  and  defend  the  title. 

The  reasons  assigned  for  this  rule  in  ac- 
tions for  a  breach  of  covenant  of  warranty 
of  title  can  scarcely  apply  to  these  prelimi- 
iiary  contracts  to  sell  and  convey  title  at  a 
future  time.  In  the  latter  case  the  vendee 
knows  he  has  not  got  the  title,  and  that  per- 
haps he  may  never  get  it;  and  if  he  will  go 
on  and  make  expenditures  under  such  cir- 
cumstances it  is  his  own  fault;  and  besides, 
these  preliminary  contracts  to  convey  gen- 
erally have  but  a  short  time  tO'  run,  and 
there  is  seldom  any  such  opportunity  for  the 
growth  of  towns,  or  a  large  increase  in  the 
value  of  the  property  as  there  is  in  these 
covenants  in  deeds,  which  run  with  the  land 
through  all    time. 

The  supreme  court  of  the  United  States 
has  refused  to  yield  its  sanction  to  this 
rule  when  applied  to  contracts  for  the  sale 
of  lands,  and  affirms  the  doctrine  that  the 
reason  of  the  rule  as  to  contracts  for  the  sale 
of  goods  and  chattels  applies  with  equal 
force  to  these  executory  contracts  for  the 
sale  of  lands.  Hopkins  v.  Lee,  6  Wheat.  109. 
That  rule  is  where  a  party  sustains  a  loss  by 
reason  of  a  breach  of  contract,  he  is,  so  far 
as  money  can  do  it,  to  be  placed  in  the  same 
situation  with  respect  to  damages  as  if  the 
contract  had  been  performed.  Robinson  v. 
Harmau,  1  Exch.  850.  This  case  of  Hopkins 
v.  Lee,  6  Wheat.  109,  is  cited  with  approba- 
tion in  some  of  the  Amexican  cases,  and  the 
rule  there  laid  down  aflli*med. 

These  views  are  not  presented  to  induce 
the  court  to  overrule  or  repudiate  the  ad- 
judged cases  in  our  own  courts  upon  this 
subject.  They  reach  back  over  a  period  of 
more  than  forty  years,  and  have  been  too 
long  sanctioned  to  be  now  repudiated. 

I  have  referred  to  this  matter  simply  as 
furnishing  an  argument  against  in  any  de- 
gi-ee  extending  the  rule,  and  as  a  reason  for 
limiting  it  strictly  where  the  already  ad- 
judged cases  in  our  own  courts  have  placed 
it.    It  becomes  important  in  this  connection 


BREACH  BY  VENDOR  OF  AGREEMENT  TO  SELL  AND  CONVEY. 


287 


to  inquire  wliat  tbat  limit  is.  Tlie  general 
rule  certainly  is  that  where  the  vendor  has 
the  title  and  for  any  reason  refuses  to  con- 
vey it,  as  required  by  the  contract,  he  shall 
respond  in  law  for  the  damages  in  which  he 
shall  make  good  to  the  plaintiff,  whom  he 
has  lost  by  his  bargain  not  being  lived  up  to. 
This  gives  the  vendee  the  difference  between 
the  contract  price  and  the  value  at  the  time 
of  the  breach,  as  profits  or  advantages  which 
are  the  direct  and  immediate  fruits  of  the 
contract.  Griffin  v,  Colver,  16  N.  Y.  4S9; 
Durkee  v.  Mott,  8  Barb.  423;  Underbill  v. 
Gas-light  Co.,  31  How.  37;  Masterson  v. 
Mayor,  etc.,  of  Brooklyn,  7  Hill,  Gl,  69. 
Where  however  the  vendor  coritracts  to  sell 
and  convey  in  good  faith,  believing  he  has 
good  title,  and  afterward  discovers  his  title 
is  defective,  and  for  that  reason  without  any 
fraud  on  his  part,  refuses  to  fulfill  his  con- 
tract, he  is  only  liable  to  nominal  damages 
for  a  breach  of  his  contract.  Baldwin  v. 
Munn,  2  Wend.  399;  Peters  v.  McKeon,  4 
Denio,  546;  Conger  v.  Weaver,  20  N.  Y.  140. 
The  rule  is  otherwise  however  where  a  par- 
ty contracts  to  sell  lands  which  he  knows  at 
the  time  he  has  not  the  power  to  sell  and 
convey;  and  if  he  violates  his  contract  in 
the  latter  case,  he  should  be  held  to  make 
good  to  the  vendee  the  loss  of  his  bargain, 
and  it  does  not  excuse  the  vendor,  that  he 
may  have  acted  in  good  faith  and  believed, 
when  he  entered  into  the  contract,  that  he 
should  be  able  to  procure  a  good  title  for  his 
purchaser.  2  Pars.  Cent.  503,  504,  505;  Hop- 
kins  V.  Grazebrook,  6  Barn.  «&  C.  31;  Diiggs 
V.  D wight,  17  Wend.  74;  Bush  v.  Cole,  28  N. 
Y.  261;  Lock  v.  Furze,  L.  R.  1  C.  P.  441; 
Robinson  v.  Harman,  1  Exch.  849;    Hill  v. 


Hobart,  16  Me.  164;  Fletcher  v.  Button,  6 
Barb.  650;  Trull  v.  Granger,  8  N.  Y.  115; 
Hopkins  v.  Lee,  6  Wheat.  109;  Burwell  v. 
Jackson,  9  N.  Y.  535;  White  v.  Madison,  26 
N.  Y.  124;  Lewis  v.  Lee,  15  Ind.  499;  Dean 
V.  Raseler,  1  Hilt.  420;  Bitner  v.  Brough,  11 
Pa.  St.  127;  McNair  v.  Crompton,  35  Pa.  St. 
23;  Wilson  v.  Spencer,  11  Leigh,  261;  Gra- 
ham v.  Hackwith,  1  A.  K.  Marsh.  429;  Dart, 
Vendors,  447.  This  rule,  applied  to  the  case 
at  bar,  sustains  the  judgment  of  the  supreme 
court. 

The  defendant  must  be  held  personally  lia- 
ble on  this  contract.  It  is  essentially  his 
contract.  In  order  to  exempt  the  contract- 
ing party  from  personal  liability,  he  must  so 
contract  as  to  bind  those  he  claims  to  repre- 
sent. Moss  V.  Livingston,  4  N.  Y.  208;  De- 
witt  V.  Walton,  9  N.  Y.  571;  Bay  v.  Gunn,  1 
Denio,  108;    Bush  v.  Cole,  supra. 

The  fact  that  the  party  describes  himself 
as  trustee,  without  stating  for  whom,  does 
not  relieve  him  from  personal  liability,  or 
change  the  effect  of  his  engagement.  Taft 
V.  Brewster,  9  Johns.  334;  White  v.  Skinner, 
13  Johns.  307;  Dewitt  v.  Walton,  supra; 
Bush  V.  Cole,  supra.  These  views  lead  to  the 
affirmance  of  the  judgment. 

GRO^^ER,  WOODRUFF,  JAMES,  and 
MURRAY,  JJ.,  concurred  with  MASON,  J., 
and  were  for  affirmance.  DANIELS,  J.,  dis- 
sents. 

NOTE.  In  Margraf  v.  Mnir,  57  N.  Y.  155, 
the  court  says,  "The  case  of  I'luupelly  v.  Phelps, 
supra,  is  the  widest  departure  from  the  general 
rule  of  damages  in  such  ease  that  is  to  be  found 
in  the  books,"  but  distinguishes  it  from  the  one 
then  before  the  coiui:. 


288 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


PITCHER  V.  LIVINGSTON. 

(4  Johns.  [N.  Y.]  1.) 

Supreme  Court  of  New  York.    Feb.  Term,  1809. 

Mr.  Foot,  for  plaintiff.  Mr.  Slosson,  for 
defendant. 

VAN  NESS,  J.  Although  it  is  not  express- 
ly stated  in  the  case,  I  shall  assume  the  fact 
to  be,  that  the  declaration  contains  an  aver- 
naent  that  the  plaintiff:  had  been  evicted,  in 
consequence  of  a  total  failure  of  the  title  de- 
rived to  him  under  the  deed  from  the  defend- 
ant. This  fact  being  assumed,  there  is  no 
dift'erence  between  the  present  case  and  that 
of  Staats  V.  Ten  Eyck's  Ex'rs,  3  Caines,  lllf, 
except,  that,  in  this  case,  beneficial  improve- 
ments have  been  made  by  the  plaintiff  upon 
the  property,  the  value  of  which  he  contends 
he  is  entitled  to  recover.  The  case  just  men- 
tioned is  among  the  most  important  and  inter- 
esting, of  any  that  have  ever  been  brought 
before  this  court  for  decision;  and,  accord- 
iugiy,  it  appears  to  have  received  the  most 
deliberate  consideration.  I  not  only  submit 
to  the  authority  of  that  case,  but  I  take  this 
occasion  to  express  my  perfect  acquiescence 
in  the  reasons,  upon  which  the  determination 
of  it  appears  to  have  proceeded.  The  cove- 
nants upon  which  the  breaches  were  assign- 
ed in  that  case,  were  the  same  as  in  the  pres- 
ent, viz.  the  covenant  of  seisin,  and  for  quiet 
enjoyment.  The  court  decided,  that  the  dam- 
ages, which  the  plaintiff  was  entitled  to  re- 
cover, were  to  be  limited  to  the  consideration 
expressed  in  the  deed,  with  the  interest  there- 
on, and  the  costs  of  suit  attending  the  evic- 
tion. But  in  addition  to  the  sum  which  the 
plaintiff,  according  to  this  rule,  would  recov- 
er, he  contends  that  the  defendant  is  bound 
to  indemnify  him  for  the  loss  of  his  im- 
pi'ovenients.  These  are  estimated  at  925  dol- 
lars; and  the  only  point  left  open  to  discus- 
sion, is,  whether  he  has  a  legal  right  to  de- 
maud  this  sum? 

In  Staats  v.  Ten  Eyck's  Ex'rs,  the  court  de- 
termined that  the  plaintiff'  was  not  entitled 
to  recover  any  damages  on  account  of  any 
increased  value  of  the  land.  Here  a  distinc- 
tion is  attempted  to  be  made  between  an  ap- 
preciation of  the  land  itself,  and  that  appre- 
ciation of  it  which  is  produced  by  the  erec- 
tion of  buildings,  or  the  labour  bestowed  up- 
on it  in  clearing  and  cultivating:  a  very 
nice,  and,  as  I  apprehend,  a  speculative  dis- 
tinction, to  which  it  would  be  ditficult,  if  not, 
in  most  cases,  impossible,  to  give  any  practi- 
cal effect,  without  danger  of  the  most  flagrant 
injustice.  The  reasoning  of  the  judges, 
whose  opinions  are  reported  in  the  case  al- 
luded to,  goes  very  far,  if  not  conclusively, 
to  prove,  that  such  a  distinction  is  utterly 
without  foundation.  The  admission  that  it 
might  possibly  exist,  has  probably  given  rise 
to  this  action,  which,  otherwise,  I  believe, 
would  not,  after  that  decision,  have  been 
brought.     One,  and  perhaps  the  principal  rea- 


son, why  the  increased  value  of  the  land 
itself  cannot  be  recovered,  is  because  the  cov- 
enant cannot  be  construed  to  extend  to  any 
thing  beyond  the  subject  matter  of  it,  that 
is,  the  land,  and  not  to  the  increased  value  of 
it,  subsequently  arising  from  causes  not  ex- 
isting when  the  covenant  was  entered  into. 
For  the  same  reason,  the  covenantor  ought 
not  to  recover  for  the  improvements;  for 
these  are  no  more  the  subject  matter  of  the 
contract  between  the  parties,  than  the  in- 
creased value  of  the  land.  The-  doctrine  con- 
tended for  by  the  plaintiff's  counsel,  is,  that 
the  damages  sustained  by  the  covenantee  at 
the  time  of  the  eviction,  ought  to  be  the  meas- 
ure of  compensation.  Most  clearly,  then,  the 
increased  value  of  the  land  is  as  much  with- 
in the  reason  of  this  rule,  as  the  improve- 
ments; and  upon  the  same  principle  that  the 
covenantee  is  entitled  to  the  one,  he  is  to  the 
other. 

But  if  the  value  at  the  time  of  eviction  is. 
to  be  the  measure  of  damages,  upon  what 
principle  is  the  consideration  and  interest,  as- 
such,  recoverable  in  addition  to  the  improve- 
ments? These  must  be  laid  out  of  viewr 
and  the  then  value  be  ascertained  without 
reference  to  them.  Besides,  if,  in  determin- 
ing the  rule  of  damages,  the  increase  of  value 
is  to  be  taken  into  view,  by  parity  of  reason- 
ing, it  woiddbe  proper,  and  what  would  be 
required  by  a  just  recipi'ocity,  to  take  inta 
consideration  any  contingent  diminution  of 
value.  Ersk.  Inst.  20G.  But  this  has  never 
been  heard  of  nor  pretended.  No  such  prin- 
ciple is  to  be  found  in  the  common  law,  not- 
withstanding these  covenants  have  been  in 
use  upwards  of  two  hundred  years.  I  think 
this  circumstance  affords  an  argument 
against  the  measure  of  damages  insisted  up- 
on by  the  plaintiff,  and  Avhich,  of  itself,  is 
nearly  decisive,  that  the  rule  is  without  legal 
foundation. 

In  illustration  of  my  opinion  on  this  part  of 
the  argument,  I  will  state  a  case.  A.  givea 
a  conveyance,  containing  covenants  of  seisin 
and  for  quiet  enjoyment,  of  a  house  and  lot. 
The  house  constitutes  two-thirds  of  the  whole 
value.  The  house  is  afterwards  burnt.  Then 
the  grantee  is  evicted  for  a  failure  of  the 
grantor's  title.  He  then  resorts  to  both  his 
covenants,  which,  of  course,  are  broken,  for 
indemnity.  What  would  be  the  measure  of 
damages?  the  value  of  the  lot,  at  the  time  of 
eviction,  being  one-third  of  what  the  whole 
cost  him;  or  the  value,  as  ascertained  and 
agreed  upon  by  the  deed  itself?  No  doubt 
the  latter.  Whenever  the  grantee's  title  has 
proved  to  be  entirely  defective,  and  there  is 
an  eviction  consequent  thereon,  the  grantee 
has  a  right  to  rescind  the  contract,  and  then, 
as  in  other  cases  depending  on  the  same  prin- 
ciple, he  recovers  back,  upon  his  covenants, 
what  he  has  paid,  with  the  interest.  Fielder 
V.  Starkin,  1  H.  Bl.  17;  Flureau  v.  Thorn- 
hill,  2  W.  Bl.  1078. 

Iq  the  case  just  put,  I  have  supposed,  that 
both  the  covenants  of  seisin  and  for  quiet 


BKEACil  OF  YENDOIfS  COVENANTS. 


289 


enjoyment  were  broken,  .uid  that  breaches 
for  both  were  duly  assigned:  and  I  have 
shown  that,  if  the  vahie  of  the  property  at 
the  time  of  eviction  is  to  be  tlie  measure  of 
damages,  it  necessarily  follows,  that  such 
diminished  value  is  all  which  ought  to  toe  re- 
covered. It  is  conceded,  that,  upon  the  cove- 
nant of  seisin  only,  the  recovery  is  to  be  con- 
fined to  the  consideration  and  interest.  On 
the  covenant  for  quiet  enjoyment,  therefore, 
the  plaintiff  must  rely,  to  recover  compensa- 
tion for  his  improvements.  Let  us  then  ex- 
amine whether,  consistently  with  certain 
fixed  legal  principles,  the  covenantee  can  re- 
cover a  greater  sum  of  damages  in  any  case 
imder  the  covenant  for  quiet  enjoyment,  than 
under  the  covenant  of  seisin? 

An  eviction  must  be  shown  before  a  suit 
can  be  maintained  on  the  former  covenant. 
Not  so,  however,  as  to  the  latter;  for  that  .s 
broken,  if  the  grantor  has  no  title,  the  mo- 
ment the  deed  is  delivered;  and  the  grantee 
has  an  immediate  right  of  action.  Whenever 
the  eviction  is  occasioned  by  a  total  want  of 
title  in  the  grantor,  then  both  the  covenants 
of  seisin  and  for  quiet  enjoyment,  are  equally 
broken;  and  the  grantee  has  his  remedy  on 
both.  If  he  proceeds  upon  the  first,  he  shall 
recover  the  consideration  expressed  in  the 
deed,  and  the  interest.  But  if  he  proceeds 
upon  the  last,  it  is  said  he  shall  recover  ac- 
cording to  the  value  at  the  time  of  eviction; 
and,  as  I  have  before  remarked,  he  must  be 
content  to  recover  according  to  the  then 
value,  even  though  it  amounts  to  one  half 
only  of  the  consideration  expressed  in  the 
deed. 

The  case  would  then  stand  thus.  When  the 
deed  contains  both  these  covenants,  if  the 
property  at  the  time  of  eviction  be  worth 
one  half  of  the  consideration  and  interest, 
the  grantee  may,  notwithstanding,  upon  the 
covenant  of  seisin,  recover  the  Avhole  con- 
sideration and  interest.  But  if  the  property 
happen  to  be  worth  double  the  consideration 
money  and  interest,  by  reason  of  the  im- 
provements made  thereon,  he  may  waive  the 
covenant  of  seisin,  and  resort  to  the  covenant 
for  quiet  enjoyment;  and  thus  recover  the 
whole  amount.  Can  this  be  possible?  It 
appears  to  me,  that  to  give  such  an  effect  to 
these  covenants,  is  not  reconcilable  Avith  any 
principle  of  law  or  justice. 

My  understanding  of  the  nature  of  these 
covenants,  when  both  are  contained  in  the 
same  deed,  is  this:  That  the  covenant  of 
seisin,  which  relates  to  the  title,  is  the  prin- 
cipal and  superior  covenant,  to  which  the 
covenant  for  quiet  enjoyment,  which  goes  to 
the  possession,  is  inferior  and  subordinate. 
And  I  am  not  aware  that  a  case  can  possibly 
occur,  where  the  grantor  can  recover  a  great- 
er amount  in  damages  for  the  breach  of  the 
latter  than  of  the  former;  though  there  are 
many  cases  where  he  may  recover  less.  The 
suit  here  is  brought  upon  both  covenants; 
and  both,  in  consequence  of  the  total  failure 
of  the  defendant's  title  and  the  eviction, 
LA\Vl)AM.2dEd.— 19 


have  been  broken.  The  i)laintiff,  according- 
ly, has  a  right  to  recover  on  both;  but  as  the 
amount  t)!'  the  recovery  would,  according  to 
my  ideas,  be  the  same  on  each,  he  must  elect 
on  which  of  them  he  means  to  rely,  and  take 
nominal  damages  on  the  otlier.  The  plaintiff 
is  entitled  to  but  one  satisfaction,  and  he  has 
his  remedy  on  either  of  the  covenants,  at  his 
election,  to  obtain  it.  It  will  hardly  be  said, 
that  he  can  have  judgment  for  tlie  same  sum 
on  both  the  covenants. 

The  covenant  against  incumbrances  stands 
upon  a  different  footing,  and  is  governed  by 
different  principles.  That  is  strictly  a  cove- 
nant of  indemnity;  and  the  grantee  may  re- 
cover to  the  full  extent  ot  any  incumbrances 
upon  the  land,  which  he  shall  have  been  com- 
pelled to  discharge.  But  even  there  it  will 
be  found,  that  the  same  rule  prevails,  in  fix- 
ing the  amount  of  damages,  as  in  actions  up- 
on the  covenants  of  seisin  and  for  quiet  en- 
joyment: that  is.  the  party  recovers  what  he 
has  paid,  with  the  interest,  and  no  more. 

But  I  consider  the  question  arising  in  this 
cause  as  settled  by  authority;  and  that,  ac- 
cording to  established  rules  of  law,  the  plain- 
tiff is  not  entitled  to  any  thing  more  than 
the  value  of  the  land,  as  settled  by  the  con- 
sideration in  the  deed. 

In  suits  upon  the  ancient  covenant  of  war- 
ranty, beyond  all  dispute,  the  recovery  was 
restricted  to  the  value  of  the  land  at  the  time 
of  making  the  covenant.  Cases  have  occur- 
red, in  which  the  value  of  the  land  has  been 
enhanced  by  subsequent  beneficial  improve- 
ments; but  the  rule  as  to  the  extent  of  sat- 
isfaction, has  continued  inflexibly  the  same, 
without  regard  to  the  increased  value,  by 
whatever  cause  it  may  have  been  produced. 
A  personal  action  will  not  lie.  on  the  covenant 
of  warranty,  upon  the  eviction  of  the  free- 
hold (Bac.  Abr.  tit.  Gov.  C);  and  for  which 
reason,  upon  the  introduction  of  alienations 
by  bargain  and  sale,  new  covenants  were  de- 
vised, but  solely  for  the  piu-pose  of  securing 
to  the  bargainee  the  personal  responsibility 
of  the  bargainor,  in  case  of  a  failure  of  his 
title.  I  think  I  am  warranted  in  saying,  that 
it  never  was  designed,  by  the  insertion  of 
these  covenants,  to  establish  any  other  rule 
of  damages  than  what  previously  existed: 
because  there  is  nothing  in  the  terms  of  the 
covenants,  from  which  an  intention  to  extend 
the  liability  of  the  covenantor  can  be  infer- 
red; but  the  contrary  is  to  be  presumed,  as 
not  a  single  case  is  to  be  found  where  such 
a  construction  of  these  covenants,  which  were 
in  a  great  measure  substituted  for  the  cove- 
nant of  warranty,  has  ever  obtained.  The 
covenant  for  quiet  enjoyment,  as  I  have  be- 
fore remarked,  is  that  upon  which  compen- 
sation for  the  improvements  is  to  be  recov- 
ered, if  at  all.  This  covenant  has  a  moi-e 
strict  analogy  to  the  ancient  covenant  of 
warranty,  than  any  of  the  other  modern  cove- 
nants. If,  then,  on  the  covenant  of  war- 
ranty, the  satisfaction  recovered  in  land  was 
to  be  equivalent  to   the  value  of   the  lands 


290 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


granlcil,  as  it  existed  at  tlie  time  wlicu  tlie 
covenant  was  made,  T  do  conceive,  that  we 
are  bound  to  adopt  a  correspondent  rule, 
wlien  satisfaction  is  souglit  to  be  recovered 
in  money,  in  a  personal  action,  on  the  cove- 
nant for  quiet  enjoj'ment. 

Such  a  rule,  moreover,  1  consider  to  be  con- 
formable to  the  intention  of  the  parties.  I 
qaestion  if  one  grantor  out  of  ten  thousand 
enters  into  these  covenants  with  the  remotest 
belief,  that  he  is  exposing  himself  and  his 
posterity  to  the  ruinous  consequences,  M'hich 
would  result  from  the  doctrine  contended  for 
by  the  counsel  for  the  plaintiff.  By  giving 
this  doctrine  our  sanction,  we  should,  in  my 
apprehension,  create  a  most  unexpected  and 
oppressive  responsibility,  never  contemplated 
by  the  parties,  and  inflict  an  equally  unmer- 
ited punishment  upon  grantors  acting  with 
,good  faith,  and  having  a  perfect  confidence 
in  the  validity  of  their  title  to  the  land,  which 
they  have  transferred  for  what  it  is  reason- 
ably worth. 

If  any  imposition  is  practiced  by  the  gran- 
tor, by  the  fraudulent  suppression  of  truth, 
or  suggestion  of  falsehood,  in  relation  to  his 
title,  the  grantee  may  have  an  action  on  the 
case,  in  the  nature  of  a  writ  of  deceit;  and 
in  such  action  he  would  recover  to  the  full 
extent  of  his  loss.  Har.  &  But.  Notes  to  Co. 
Litt.  384a,  tit.  "Warranty";  1  Fonb.  Eq.  366; 
1  Com.  Dig.  236,  A,  8. 

I  am  aware  that  it  is  difhcult  to  lay  down 
any  general  rule  on  this  subject,  wholly  free 
from  objection.  This  is  a  difficulty  which 
has  been  felt  by  the  profoundest  jurists  in 
all  ages.  I  think,  however,  that  the  rule  of 
■  the  common  law,  which  obliges  the  grantor, 
when  he  believes  he  has  a  valid  title,  and 
acts  without  fraud,  to  refund  what  he  has 
received,  with  the  interest,  is  as  equitable  as 
any  that  has  ever  been  established;  and  that 
this  is  all  which,  upon  principles  of  the  most 
rigorous  justice,  ought  to  be  exacted  from 
him. 

My  opinion,  therefore,  is,  that,  in  this  case, 
the  plaintiff  is  entitled  to  recover  the  consid- 
eration money  expressed  in  the  deed,  with 
the  interest,  and  the  costs  of  suit  following 
the  eviction,  and  no  more. 

SPENCER,  J.  It  is  submitted  to  the  court, 
by  the  case  made  and  argued  in  this  cause, 
what  is  the  correct  rule  of  damages,  upon 
covenants  of  seisin  and  for  quiet  enjoyment, 
contained  in  a  deed  conveying  lands,  in  a 
case  where  the  grantee  has  made  improve- 
ments, and  where  the  value  of  the  land  has 
appreciated.  It  is  also  made  a  question, 
whether  the  plaintiff  is  entitled  to  recover  in- 
terest on  the  consideration  money  paid  for 
the  lands. 

It  is  to  be  regretted,  that  the  case  is  so  loose 
in  several  respects.  It  is  fair,  however,  to 
infer,  from  the  case  as  it  stands,  and  as  it 
was  argued,  that,  in  point  of  fact,  both  cove- 
nants were  broken;  that  the  plaintiff  was 
evicted  for  defect  of  title  in  the  defendant. 


and  that  the  plaintiff  had  made  improve- 
ments, in  the  usual  course  of  agriculture,  on 
the  lands  conveyed  by  the  defendant  to  him, 
of  a  substantial  kind,  to  the  value  of  .$925. 

The  case  of  Staats  v.  Ten  Eyck's  Ex'rs.  3 
Caines,  112,  decides  two  of  the  questions 
which  arise  out  of  this  case.  In  that  case, 
though  the  value  of  the  land  had  increased 
by  extrinsic  causes,  the  plaintiff  was  allowed 
to  recover  only  the  consideration  paid,  with 
the  interest,  costs,  and  counsel  fees.  The  in- 
terest was  allowed,  because  the  purchaser 
was  subject  to  an  action  for  the  mesne 
profits;  and  in  the  present  case  it  is  to  be 
intended,  that  the  plaintiff  is  liable  to  pay 
them  to  the  person  who  has  the  title,  and 
consequently  it  is  to  be  alloAved.  It  will  be 
seen,  that  these  two  questions  have  received 
a  similar  determination  in  the  supreme  ju- 
dicial court  of  Massachusetts.  Marston  v. 
Hoblis,  2  Mass.  433.  In  the  case,  before 
cited,  of  Staats  v.  Ten  Eyck's  Ex'rs,  the  court 
expressly  reserved  its  opinion,  upon  a  case 
like  the  present,  where  beneficial  improve- 
ments have  been  made  on  the  premises  after 
the  purchase.  It  was  then  considered,  that 
there  might  be  a  difference  between  the  case 
of  the  rise  in  value  by  the  natural  apprecia- 
tion of  lands,  depending  in  a  great  measure 
on  ideal  worth,  and  the  case  of  improvements 
of  a  beneficial  kind. 

This  question  I  do  not  think  has  been  set- 
tled in  the  English  courts.  It  has  never  been 
decided  in  our  own,  and  consequently  it  ap- 
pears to  me,  that  we  are  at  full  liberty  to  fix 
a  rule,  which  shall  bear  analogy  to  other 
cases,  and  attain  complete  justice  between 
the  parties.  I  cannot  pretend  to  say,  that 
the  rule  which  I  shall  lay  down  will  be  free 
"rom  objection,  when  applied  to  all  cases; 
and  I  am  not  sensible  that  any  general  rule, 
in  almost  any  given  case,  will  invariably  be 
free  from  exception.  It  is  the  very  nature 
of  general  rules,  sometimes  to  operate  harsh- 
ly; but  the  necessity  of  a  fixed  standard  of 
justice  is  of  more  importance  to  the  inten-sts 
of  men,  than  one  that  is  capricious  and  fluc- 
tuating. 

It  has  I  think  been  erroneously  said,  that 
the  defect  of  title  is  a  case  of  mutual  error; 
on  the  contrary,  from  my  observation  and 
knowledge  of  the  sale  of  lands,  I  think  the 
defect  of  title  is  a  matter  generally  and  al- 
most universally  in  the  peculiar  knoAvledge 
of  the  vendor.  It  is  a  rare  case  for  a  pur- 
chaser to  investigate  the  seller's  title;  and  in 
most  cases,  it  is  impossible.  The  buyer  re- 
lies on  the  allegations  of  the  vendor,  on  his 
apparent  responsibility  to  reimburse  in  case 
of  eviction,  upon  his  possession  of  the  prop- 
erty, and  emphatically  on  his  covenants  of 
title  and  for  quiet  enjoyment.  These  cove- 
nants, whenever  they  occur  in  a  deed,  seem 
to  me  to  indicate,  beyond  all  question,  that 
the  purchaser  did  not  mean  to  rely  on  the 
title  of  the  vendor  alone,  but  that  he  meant 
to  have  his  personal  liability,  as  his  guaranty. 
The  language  of  the  vendor  corresponds  with 


BREACH  OF  VENDOR'S  COVENANTS. 


291 


that  of  the  purchaser,  and  holds  out  the  idea 
that  he  had  sold  the  laud  at  his  own  peril, 
and  that  he  would  warrant  it  to  be  his.  Ex- 
travagant cases  have  been  put  hypothetical- 
ly,  to  shew  the  enormous  iujustice  of  the  rule, 
that  the  vendor  must  be  answerable  for  im- 
provements. It  has  been  asked,  if  a  piece 
of  land  thus  sold,  with  covenants,  should  be- 
come the  site  of  a  flourishing  citj',  what  for- 
tune could,  under  a  rule  allowing  for  im- 
proA^ements,  withstand  ruin?  It  may  be  re- 
torted to  such  a  question,  what  is  to  become 
of  the  industrious  citizen  or  mechanic,  who 
has  spent  his  hard  earnings  in  erecting  his 
little  house  or  workshop,  relying  on  the  cove- 
nant in  his  deed,  if  he  can  ouly  get  back  his 
purehnse-money  and  interest?  It  is  not  fair, 
however,  to  test  a  rule  by  extreme  cases. 
To  settle  a  general  rule  wisely  and  equitably, 
we  should  have  an  eye  to  cases  which  gen- 
erally occur,  and  not  be  startled,  on  the  one 
hand  or  the  other,  by  those  occurrences  which 
are  rare  and  few.  In  general,  the  defect  of 
title  happens  in  sales  between  man  and  man, 
where  the  improvements  are  of  the  ordinary 
and  beneficial  kind.  If  the  improvements  are 
merely  to  gratify  the  eye  of  the  individual, 
and  to  pamper  his  vanity  and  pride,  a  jury 
would  be  warranted  to  take  those  things  into 
consideration  In  their  asse.ssment  of  damages. 
I  lay  it  down  as  a  rule,  which  cannot  re- 
quire much  illustration  to  enforce  it,  on  the 
score  of  analogy  and  justice,  that  in  actious 
for  a  breach  of  covenant,  the  damages  are  to 
be  estimated  according  to  the  value  of  the 
thing,  when  the  covenant  was  broken.  Thus, 
in  a  covenant  for  the  delivery  of  specific  prop- 
erty at  a  given  day,  in  case  of  a  failure,  the 
rule  invariably  is,  to  allow  in  damages  the 
value  of  the  thing  on  the  day  it  ought  to 
have  been  delivered,  and  when  the  covenant 
was  broken.  So,  also,  on  contracts  for  the 
delivery  of  stock,  the  value  at  the  time  it 
4  ought  to  have  been  delivered,  and  even  at  the 
time  of  trial,  has  been  the  criterion  of  dam- 
ages. 2  Burrows,  1010;  1  Strange,  406;  2 
East,  211.  In  the  present  case,  the  defendant 
covenanted  that  the  plaintiff  should  quietly 
enjoy  the  land  sold.  This  covenant  was  vio- 
lated, when  the  plaintiff  was  evicted;  and  he 
has  lost,  by  the  breach  of  the  covenant,  not 
only  the  quiet  enjoyment  of  the  land,  but  the 
usufruct  of  those  erections  and  improvements, 
without  which,  it  is  fair  to  say,  that  the 
land  itself  could  not  have  been  enjoyed,  agree- 
ably to  the  intention  of  the  parties.  It  neces- 
sarily follows,  that  had  the  defendant  kept 
his  covenant  and  allowed  the  plaintiff  to  en- 
joy the  premises  sold,  he  would  not  have  been 
deprived  of  those  improvements  made  on  the 
thing  itself,  the  making  of  which  was  an 
inducement  to  the  purchase.  How  it  can  be 
called  a  severe  doctrine  to  compel  the  vendor 
to  respond  in  damages  for  ordinary  and  neces- 
sai-y  improvements,  I  confess  myself  incapa- 
ble of  perceiving,  when  he  has  undertaken, 
for  a  price  paid,  to  assure  to  the  vendee  the 
validity  of  his  title.     Very  often,  and  perhaps 


generally,  there  is  a  want  of  due  caution  on 
the  part  of  a  vendor,  who  sells  without  title; 
and  not  unfrequently  there  is  a  mixture  of 
fraud,  which  sets  detection  at  defiance.  The 
rule  I  have  advanced,  whilst  it  will  restore 
to  the  innocent  vendee  no  more  than  he  has 
actually  lost,  will  induce  greater  caution  in 
sellers,  who,  if  responsible  only  for  the  prin- 
cipal and  interest,  will  find  the  sehing  of 
land  without  title  an  easy  and  exceUent  meth- 
od of  raising  money,  instead  of  resorting  to 
borrowing. 

It  follows,  from  the  view  I  have  taken  of 
this  question,  that  the  plaintiff,  under  the 
covenant  for  quiet  enjoyment,  may  recover 
the  improvements;  and  that  under  the  cove- 
nant of  seisin  he  could  not,  unless  the  grantee 
was  seised  by  virtue  of  the  deed,  and  had 
been  evicted  under  a  title  paramount.  I  have 
not  entered  into  any  examination  of  the  an- 
cient method  of  proceeding  under  the  war- 
rantia  chartise,  and  the  rule  which  obtained 
in  such  case,  under  the  writ  of  cape  ad  valen- 
tiam;  because  the  covenants  of  warranty 
were  then  considered  as  real  covenants  bind- 
ing only  on  the  grantor  and  his  heirs.  It 
has,  however,  been  urged  that  the  introduc- 
tion of  the  covenants  of  seisin  and  for  quiet 
enjoyment,  were  substitutes  for  the  covenant 
of  warranty,  and  that  the  same  rule  ought 
to  follow  the  substituted  covenants.  It  ap- 
pears to  me  much  more  proper  to  consider  the 
introduction  of  personal  covenants  in  the 
alienation  of  real  property,  as  immediately 
assimilating  themselves  to  other  personal 
covenants  and  contracts,  and  as  subject  to  the 
same  rules  of  construction,  and  the  same  rule 
of  damages,  whenever  they  are  broken.  If 
so,  the  covenant  for  quiet  enjoyment  was  not 
broken  until  the  eviction,  and  the  rule  of  dam- 
ages would  be  the  property  lost  at  that  time, 
which  would  include  the  price  paid  for  the 
land,  and  the  value  of  those  erections  and  im- 
provements which  had  been  added  at  the 
plaintiffs  expense.  It  is  supposed,  that 
though  the  covenants  of  seisin  and  for  quiet 
enjoyment  are  distinct,  and  regard  different 
objects,  yet  that  where  the  first  fails,  the  lat- 
ter is  merged  in  it.  This  principle  strikes 
me  as  illogical,  and  unfounded  in  authority. 

There  are  authorities  (Freem.  450,  pi.  612; 
6  Vin.  Abr.  426.  pi.  20;  Id.  476,  pi.  4)  which 
show,  that  where,  in  a  deed,  a  man  covenants 
that  he  hath  a  good  right  to  convey,  &c.  and 
that  the  party  shall  quietly  enjoy,  one  cove- 
nant goes  to  the  title  and  the  other  to  the  pos- 
session. And  why  a  person  who  has  broken 
two  distinct  agreements,  should  protect  him- 
self from  a  responsibility  on  both,  and  be 
liable  only  on  the  least  extensive  one,  sur- 
passes my  powers  of  comprehension.  A  case 
has  been  mentioned  as  decided  in  the  supreme 
court  of  Pennsylvania  (Bender  v.  Fromberger, 
4  Dall.  436),  as  bearing  on  the  present;  it  will 
be  found  to  have  been  on  the  mere  covenant 
of  seisin,  and  power,  «fcc.  to  convey  in  fee. 
The  rule  I  have  adopted  meets  that  case,  and 
is  reconcilable  with  it,  for  there  the  covenant 


292 


BEEACil  OF  CONTRACTS  llESrECTING  REAL  ESTATE. 


■was  broken  as  snou  as  it  was  made,  and  the  i 
damages  then  sustained  were  tlie  considera- 
tion money  and  interest. 

KENT,  C.  J.  Tlie  declaration  in  tliis  case 
is  upon  two  distinct  covenants  in  tlie  deed, 
to  wit,  the  covenant  of  seisin,  and  the  cove- 
nant for  quiet  enjoyment;  and  the  verdict 
was  taken  for  the  iilaintii'f,  subject  to  the 
opinion  of  the  court,  as  to  the  rule  of  dam- 
ages. We  must  take  it  for  granted  upon  this 
ease,  and  so  it  seems  to  have  been  understood 
and  admitted  upon  the  argument,  that  both 
covenants  were  broken,  and  the  question, 
then,  is,  what  is  the  measure  of  damages, 
when  the  two  covenants  are  the  subject  of 
one  action,  and  a  breach  of  each  has  been 
duly  assigned  and  proved? 

The  case  of  Staats  v.  Ten  Eyck's  Ex'rs  goes 
very  far  towards  a  decision  of  this  question. 
That  was  a  suit  upon  the  same  covenants, 
and  a  breach  of  both  was  admitted.  The 
point  submitted  was  the  rule  of  damages, 
"under  the  covenants  mentioned  in  the  deed." 
The  court  adjudged  that  the  rule  of  damages 
was  the  consideration  money  and  interest: 
and  I  observed,  in  giving  my  opinion  in  that 
case,  that  the  covenant  for  quiet  enjoyment 
could  have  no  greater  operation,  as  to  dam- 
ages, than  the  covenant  of  seisin.  Mr.  Justice 
Livingston,  who  also  gave  his  opinion,  was 
silent  upon  that  point;  but  it  was  a  neces- 
sary consequence  of  the  judgment  of  the  court, 
that  the  increased  value  of  the  land  could  not 
be  recovered  under  either  of  those  covenants. 
The  doctrine  that  the  measure  of  damages, 
under  the  covenant  for  quiet  enjoyment,  is  to 
be  computed  from  the  time  of  eviction,  and  to 
include  the  then  value,  even  when  the  title 
has  totally  failed,  and  the  covenant  of  seisin 
broken,  cannot  possibly  be  reconciled  with 
that  decision.  I  do  not  wish,  however,  to 
rest  my  opinion  in  this  case  solely  upon  that 
authority.  As  the  question  is  of  great  im- 
portance, I  am  content  to  re-examine  it  at 
large. 

What  would  be  the  rule  of  damages  under 
a  covenant  for  quiet  enjoyment,  if  a  breach 
of  that  covenant  was  shown  which  did  not 
amount  to  a  breach  of  the  covenant  of  seisin, 
or  if  that  covenant  stood  alone  in  a  deed,  un- 
accompanied with  the  covenant  of  seisin,  is 
riot  a  point  at  present  before  us.  If,  how- 
ever, it  stood  alone  in  a  deed,  I  shoidd  think, 
as  at  present  advised,  that  upon  a  total  fail- 
ure of  title,  the  damages  would  be  the  same 
as  in  the  covenant  of  seisin,  and  no  more,  for 
the  analogy  is  very  close  between  that  cove- 
nant and  the  ancient  warranty.  But  when 
tlic  covenant  for  quiet  enjoyment  follows  a 
covenant  of  seisin  in  the  same  deed,  the  in- 
tent of  the  instrument,  taken  together,  ap- 
pears manifestly  to  be,  that  the  one  covenant 
is  merely  auxiliary  to  the  other,  as  the  one 
covenant  relates  to  the  title,  and  the  other 
refers  to  the  future  enjoyment  of  that  title. 
The  covenant  for  <iuict  enjoyment  respects 
the  possession  merely,  and  it  woidd  seem  to 


be  unreasonable  and  very  inconsistent,  for  the 
plaintiff  to  recover  under  one  covenant  the 
whole  value  of  the  estate,  as  it  was  intended 
to  be  convej'ed,  and  under  another  covenant 
in  the  same  deed,  distinct  and  increased  dam- 
ages, because  he  was  not  permitted  to  enjoy 
that  estate.     These  covenants  must  be  taken 
in  connection,  to  ascertain  their  import.     The 
covenant  for  further  assurance  is  one  of  these     • 
secondary  covenants,  and  if  the  grantor  had 
no  title,  and  the  value  of  the  land  was  re- 
covered back  by  the  grantee,  he  could  not  be 
called  upon  in  damages  for  further  assurance. 
This  would  be  very  idle  when  it  had  been  as- 
certained by  the  recovery  under  the  principal 
covenant  that  he  had  nothing  to  assure.     If 
the  grantee  recovers  what  is  to  be  deemed, 
upon  established  principles,  the  value  of  the 
land,  under  the  covenant  of  title,  it  amounts, 
in  effect,  to  a  satisfaction  and  extinguishment 
of  the  covenants  relative  to   the  possession, 
and  the  grantee  cannot  receive  anything  more 
than  nominal  damages  under  those  covenants. 
There  is  no  precedent  to  authorize  any  greater 
recovery,  under  the  covenant  for  quiet  enjoy- 
ment than  under  the  covenant  of  seisin;    and 
the  universal  silence  in  the  books  on  a  point 
which  so  frequently   gives  occasion  for  liti- 
gation,  is  a   strong  argument  to   prove   that 
no  such  rule  exists  as  that  contended  for  by 
the  plaintiff.     I  believe  it  has  never  been  the 
received  opinion  with  us,  that  in  a  deed  con- 
taining the  usual   covenants,   viz.    the   cove- 
nant of  title  or  seisin,  and  the  covenant  rela- 
tive to  the  possession,  the  latter  covenants, 
in  a  case  of  no  title,  and  consequently  of  a 
breach  of  the  covenant  of  title,  would  become 
paramount    covenants    and    afford    a    larger 
claim   for  damages.     The  latter  construction 
would  not  only  introduce  a  rule  hitherto  un- 
discovered in  the  common  law  of   England, 
but  a  rule  of  great  moment  in  its  immediate 
consequences  to  the  community;    and  I  must     ^ 
be  thoroughly  persuaded  of  the  soundness  of 
the    construction,    either    upon    authority    or 
principle,   before  I  can  consent  to  adopt   it. 
When,    therefore,    there   is   no   authority    for 
such  a  construction  to  be  met  with  in  the  de- 
cisions at  Westminster-Hall,    and   it   appears 
to  be  repugnant  to  the  natural  and  reasonable 
interpretation  of  the  covenants,  as  found  in 
connection  in  the  same  deed,  I  must  adhere 
to  the  opinion  which  I  gave  in  the  case  of 
Staats  V.  Ten  Eyck's  Ex'rs,  and  which  nmst. 
from  a  view  of  that  case,  have  been  also  the 
unanimous  opinion  of  the  court. 

The  case  before  us,  then,  resolves  itself 
into  this  question.  What  is  the  extent  of  the 
rule  of  damages  on  a  breach  of  the  cove- 
nant of  seisin? 

Three  points  are  submitted  by  the  case: 
(1)  Whether  the  plaintiff  can  recover  inter- 
est on  the  consideration  paid?  (2)  Whether 
he  can  recover  for  the  increased  value  of 
the  land?  And  (3)  whether  he  can  recover 
for  his   beneficial    improvements? 

The  two  first  points  were  settled  in  the 
case  of  Staats  v.  Ten  lOyck's  Ex'rs,  and  need 


BREACH  OF    VKNDOIfS  COVENANTS. 


•J'JiJ 


not  again  be  oxauiiued.  Nothing  has  been 
shoAvu  ^Yhicb  affects  the  accuracy  of  that  de- 
cision on  those  points,  and  it  deserves  no- 
tice as  being  of  great  weight  in  support  of 
that  decision,  that  in  the  states  of  Massa- 
chusetts and  Pennsylvania,  the  same  rule 
of  damages  is  established  in  an  action  for 
the  breach  of  the  covenant  of  seisin.  The 
third  point  was  reserved  in  the  considera- 
tion of  the  former  case,  and  no  opinion  ex- 
pressed upon  it.  It,  therefore,  remains  open 
for  discussion. 

I  must  own  that  I  never  perceived  any 
ground  for  a  distinction  as  to  the  damages, 
between  the  rise  in  the  value  of  the  land, 
and  the  improvements.  There  is  no  I'eason 
for  such  a  distinction,  deducible  from  the 
nature  of  the  covenant  of  seisin.  Improve- 
ments made  upon  the  land  were  never  the 
subject-matter  of  the  contract  of  sale,  any 
more  than  its  grndual  increase  or  diminution 
in  value.  The  subject  of  the  contract  was 
the  land  as  it  existed,  and  was  worth  when 
the  contract  was  made.  The  purchaser  may 
have  made  tne  purchase  under  the  expecta- 
tion of  a  great  rise  in  the  value  of  the  land, 
•or  of  great  improvements  to  be  made  by 
the  application  of  his  wealth,  or  his  labor. 
But  such  expectations  must  have  been  con- 
fined to  one  party  only,  and  not  have  en- 
tered as  an  ingredient  into  the  bargain.  It 
Avas  the  land  and  its  price,  at  the  time  of 
the  sale,  which  the  parties  had  in  view, 
and  to  that  subject  the  operation  of  the  con- 
tract ought  to  be  coutined.  The  argument 
in  favor  of  the  value  of  the  land,  and  the 
improvements  as  they  exist  at  the  time  of 
eviction,  has  generally  excepted  cases  of  ex- 
traordinary increase,  and  of  very  expensive 
improvements.  It  seems  to  have  been  ad- 
mitted, that,  without  such  a  limitation  to 
the  doctrine,  it  could  not  be  endured.  But 
this  destroys  every  thing  like  a  fixed  rule 
on  the  subject,  and  places  the  question  of 
<lamages  in  a  most  inconvenient  and  danger- 
-ous  uncertainty.  We  have  a  striking  illus- 
tration of  this  in  the  French  law.  The  rule 
in  France,  upon  bona  fide  sales,  according 
to  Pothier,  Traite  du  Contrat  de  Vente,  No. 
132  to  No.  141,  is  to  make  the  seller,  on 
eviction  of  the  buyer,  refund  not  only  the 
•^)riginal  price,  but  the  increased  value  of  the 
land,  and  the  expense  of  the  meliorations 
made.  He  admits,  however,  that  the  in- 
tention of  the  parties  is  to  be  the  rule  in  the 
assessment  of  damages,  and  that,  in  the 
<*ase  of  an  immense  augmentation  in  the 
price  of  the  land,  or  in  the  value  of  the  im- 
provements, the  seller  is  to  answer  only  for 
the  moderate  damages  which  the  parties 
<'ould  be  supposed  to  have  anticipated  when 
the  contract  was  made.  It  is  plainly  to  be 
perceived,  that  there  is  no  certainty  in  such 
a  loose  application  of  the  rule,  and  that  it 
leaves  the  damages  to  an  arbitrary  and  un- 
defined discretion,  and  so  it  appears  to  have 
been  understood;  for  in  the  "Institution  au 
Droit  Francois,"  by  M.  Argou  (livre  3.  c.  23), 


it  is  laid  down,  that  "the  qui>stion  of  dam- 
ages,  beyond   the  price  paid,   is  with   them 
very  arbitrary."     This   is  not   consonant  to 
the  genius  or  our  law,  nor  does   it  recom- 
mend   itself    well    for   our   adoption.     On    a 
subject  of  such  general  concern,  and  of  such 
momentous  interest,  as  the  usual  covenants 
in   a  conveyance  of  land,   the   standard   for 
the  computation  of  damages,  upon  a  failure 
of  title   (whatever   that   standard   may   be), 
ought,  at  least,  to  be  certain  and  notorious. 
The   seller   and   the   purchaser   are   equally 
interested  in  having  the  rule  fixed.     I  agree, 
that    the    contract    is    to    be    construed,    ac- 
cording to  the  intention  of  the  parties;    but 
I   consider,   that  the  intention   of   the   cove- 
nant of  seisin,   as   uniformly  expounded   in 
the  English   law,   is   only   to   indemnify  the 
grantee    for    the    consideration    paid.      This 
was  the  settled  rule  at  common  law,  upon  the 
ancient   warranty,    of   which    this    covenant 
of  seisin  is  one  of  the  substitutes;    and  all 
the  reasons  of  policy  which  prevent  the  ex- 
tension of  the  covenant  to  the  increased  val- 
ue of  the  land,  apply  equally,  if  not  more 
strongly,  to  prevent  its  extension  to  improve- 
ments made  by  the  purchaser.     A  seller  may 
be   presumed,   at  all   times,   able   to   return 
the  consideration  which  he  actually  received; 
but  to  compel  him  to  pay  for  expensive  im- 
provements,   of    the    extent       of   which    he 
could    have    made    no    calculation,    and    for 
which    he    received    no    consideration,    may 
suddenly  overwhelm  him. and  his  family  in 
irretrievable  ruin.      The  common  law  never 
left  the  vendor  in  such  a  state  of  uncertain- 
ty;   and  it  made  no  distinction  between  the 
natural  rise  of  the  land,   and  its  increased 
value,  by  buildings,  or  other  improvements. 
The    feoffor    was    still    to    answer    only    for 
the  value  of  the  land,  as  it  was  worth  when 
the    feoffment    was    made.     This    was    the 
amount  of  the  decision  in  Yearbook  30  Ed. 
III.    p.    14b.     A    man    had    a   warship,    and 
granted  it  over,  with  warranty,  and,  after- 
wards,    the     grantee     was     impleaded,    and 
vouched    the    grantor.     Now    the    wardship 
was  of  more  value  at  the  time  of  the  vouch- 
er,  than  it  was  at  the  time  of  the  grant, 
with    warranty,    by    reason    of    other    lands 
descending,   afterwards,   or  by  buildings   or 
otherwise,  and  it  was  held,  that  the  vouchee 
could  .take  protestation  of  this  matter  when 
he  entered  into  the  warranty;    i.  e.  when  he 
was  admitted  to  defend,  instead  of  the  orig- 
inal   tenant.     And    Burton    laid    this    down 
for   law,    that  if   land    be   better   after   the 
feoffment  made  by  buildings  or  otherwise, 
he  who   receives  in   value,    receives   but   ac- 
cording as  the  land  was  worth  at  the  time 
of  the  feoffment,  and  not  more.     The  same 
rule  was  laid  down  for  law  by  Newton,  J., 
in  Yearbook  19  H.  VI.  p.  46a;    and  again,  in 
Gla,   and  he  says  that  it  had   been  so   ad- 
judged, and  he  refers  to  the  decision  in  30 
Ed.  III.  which  he  said  was  not  controverted. 
This  rule,  upon  the  sanction  of  these  author- 
ities,  has   been   incorporated,   as   good   law. 


294 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


into  the  Abridgments  of  Fitzherbert,  Brooke, 
and  Rolle.  But  the  ease  of  Ballet  v.  Ballet, 
Godb.  151,  in  the  time  of  Jac.  I.,  is  a  much 
more  modera  determination  upon  the  same 
point.  That  was  a  case  of  a  writ  of  war- 
i-antia  charta?,  and,  upon  demurrer,  the 
court  hold,  that  if  there  be  new  buildin.us, 
of  which  the  warranty  was  demanded,  which 
were  not  at  the  time  of  the  warranty  made, 
and  the  deed  is  shown,  the  defendant  ought 
uot  to  demur,  but  to  show  the  special  matter, 
and  enter  Into  the  warranty  for  so  much  as 
was  at  the  time  of  the  making  of  the  deed, 
and  not  for  the  residue.  Indeed,  the  point 
is  too  clear  to  admit  of  doubt,  that  the  in- 
creased value  of  the  land  by  buildings  or 
other  Improvements,  made  no  alteration,  at 


common  law,  in  the  rule  of  damages;  and„ 
for  the  reasons  given  in  the  former  case 
of  Staats  V.  Ten  Eyck's  Ex'rs,  it  can  make 
no  alteration  in  the  covenant  of  seisin, 
which,  as  to  the  rule  of  compensation,  is 
commensurate  only  with  the  ancient  war- 
ranty. 

I  am,  therefore,  of  opinion,  in  this  case, 
that  the  sum  allowed  for  the  increased  value 
of  the  land,  and  the  sum  allowed  for  im- 
provements, be  deducted  from  the  verdict,, 
and  that  judgment  be  entered  for  the  resi- 
due only. 

THOMPSON  and  YATES,  JJ.,  concurred. 

Judgment  accordingly. 


BREACH  OF  VENDOR'S  COVENANTS. 


295 


BROOKS  V.    BLACK. 

(S  South.  332,  68  Miss.  161.) 

Supreme  Court  of  Mississippi.    Nov.   10,  1890. 

Appeal  from  chancery  court,  Noxubee 
county;  T.  B.  Graham,  Chancellor. 

G.  A.  Evans  and  Braine  &  Alexnnderjor 
appellant.     Bogle  &  Bogle,  for  appellee. 

COOPER,  J.  This  is  a  proceeding-  by 
attacliment  in  chancery  by  the  appellee, 
Black,  aj^ainst  his  remote  vendor,  Brooks, 
to  recover  damages  for  the  breach  of  war- 
ranty of  title  to  certain  lands.  In  iNiiy, 
Brooks  conveyed  the  land,  with  covenants 
of  warranty,  to  one  Spencer,  the  consider- 
ation being  the  sum  of  $6,290.  Spencer  exe- 
cuted a  deed  of  trust,  with  power  of  sale, 
to  one  Smith,  to  secure  the  payment  of  a 
debt  of  .fWO  to  Graham,  Black  &  Co.  la 
September,  1878,  the  debt  secured  being-  un- 
paid, the  land  was  sold,  as  provided  by 
the  trust-deed,  and  at  such  sale  Black,  the 
appellee,  became  the  purchaser,  at  the 
price  of  $1,000.  After  his  pui'chase.  Black 
conveyed  to  Mrs.  Spencer  an  undivided 
one-half  interest  in  the  land.  Afterwards, 
the  heirs  at  law  of  Mr«.  Caroline  Daves 
and  Mrs.  Neilson  recovered  in  ejectuient 
from  Black  and  Mrs.  Spencer  the  undivided 
one-half  interest  in  the  land,  claiming  un- 
der title  paramount  to  that  of  Brooks. 
Brooks  was  not  notified  of  the  pendency 
of  this  action  of  ejectment.  Black,  by  the 
result  of  that  suit,  having  lost  the  one- 
half  of  his  half  interest  in  the  land,  (the 
one-fourth  of  the  whole,)  seeks  by  the 
present  pi'oceedingto  recover  from  Brooks 
one-fourth  of  the  consideration  paid  him 
by  Spencer,  and  interest  thereon,  and  the 
costs  of  defending  the  action  of  ejectment 
against  the  heirs  of  Daves  «&  Neilson,  in- 
cluding attorney's  fees.  The  chancellor 
found  as  facts  that  the  title  of  the  heirs  of 
Mrs.  Daves  and  Mrs.  Neilson  was  para- 
mount to  that  of  Brooks;  that  the  value 
of  the  land  at  the  time  of  eviction  was 
$6,000;  and  that  Black,  in  good  faith,  and 
in  discharge  of  a  legal  duty,  had  defended 
the  action  of  ejectment,  and  in  so  doing 
had  expended  in  court  costs  the  sum  of 
$249.91,  and  the  further  sum  of  $200  for  at- 
torney's fees,  which  were  reasonable.  Up- 
on these  facts,  he  decreed  that  Brooks 
should  pay  to  Black  the  sum  of  $1,500,  the 
same  being  the  actual  value  of  the  land 
lo3t  by  Black,  and  less  than  one-fourth  of 
the  purchase  price  paid  to  Brooks  by 
Spencer,  with  interest  at  6  per  cent,  from 
.Tanuary  1, 18SS,  the  date  of  Black's  evic- 
tion, and  also  the  said  sums  of  $249.91  and 
$200,  the  court  costs  and  attorney's  fees, 
with  interest  thereon  from  the  commence- 
ment of  this  suit.  Brooks  appeals  and  as- 
signs for  error  (1)  that  the  court  should 
have  not  made  any  decree  against  him, 
because  the  facts  proved  show  that  the 
debt  secured  by  the  deed  of  trust  from 
Spencer  to  Smith,  trustee,  had  been  paid 
at  and  before  the  sale  under  said  deed  ;  (2) 
that  the  measure  of  damages  should  be  the 
one-fourth  of  the  purchase  price  paid  by 
Black,  and  not  the  one-fourth  of  the  value 
of  the  land  at  the  time  of  eviction,  nor  the 
one-fourth  of  purchase  money  received  by 
Brooks;  (3)  the  court  should  not  have  al- 
lowed the  court  costs  expended  in  defend- 
ing the  action  of  ejectment;  (4)  the  court 


should  not  have  allowed  attorney's  fee 
paid  in  defending  said  action. 

It  is  sufficient  to  say,  in  reference  to  the 
first  assignment  of  error,  that  the  facts  do 
not  support  appellant's  contention. 

The  second  assignment  of  error  presents 
an  interestiiig  question  which  has  never 
before  been  considered  by  this  court,  and, 
so  far  as  our  researches  have  led,  has  not 
often  arisen  in  other  states.  Tliat  qnes- 
tion  is,  what  is  the  measure  of  damages, in 
a  suit  by  an  evicted  vendee,  upon  the  cov- 
enant of  warranty  of  a  remote  vendor, 
running  with  land?  May  he  recover  the 
purchase  price  received  by  the  remote  ven- 
dor, or  is  he  limited  by  the  consideration 
he  himself  has  i)aid?  It  is  supposed  by 
counsel  for  theappellant  thatthesum  paid 
by  the  evicted  party — the  value  of  the  land 
at  the  time  of  his  purchase — is  fixed  as  the 
measure  of  damages  in  this  state  by  the 
case  of  White  v.  Presly,  .54  Miss.  313.  But 
the  question  was  not  raised  by  the  record 
in  that  case;  and  although  Chalmers,  J., 
in  delivering  the  opinion  of  the  court,  de- 
clares that  the  sum  paid  b3'  the  evicted  par- 
ty, with  interest,  the  same  being  less  than 
the  sum  received  by  the  remote  vendor,  is 
a  correct  measure  of  damages,  the  decla- 
ration does  not  thereby  become  decisive. 
In  that  case,  Huntington  had  sf)ld  land 
to  one  Jones,  from  whom  the  title  had 
passed  under  execution  sale  to  Pressly. 
Presslylost  tfie  land  by  reason  of  title  par- 
amount to  that  of  Huntington,  and  sued 
Huntington'sadministrator  on  the  cove- 
nants of  warranty,  and  recovered  in  the 
court  below  the  sum  he  had  paid  at  exe- 
cution sale,  and  interest  thereon,  the  same 
being  less  than  Huntington  had  received. 
The  administrator  appealed.  He,  as  ap- 
pellant, could  not  assign  as  error  the  fact 
that  damages  less  than  should  have  been 
awarded  had  been  given;  nor  could  the 
appellee  raise  the  point  here,  that  the  judg- 
ment he  sought  to  maintain  should  have 
been  for  a  greater  sum.  The  observation 
of  the  judge  was  not  upon  any  question 
sought  to  be  raised,  or  which  could  have 
been  decided,  and  therefore  is  not  the  de- 
cision of  the  court.  Among  the  first  cases 
in  which  the  liability  of  a  vendor  to  his 
vendee  for  breach  of  the  warranty  for 
quiet  possession  was  considered  were 
Staats  v.  Ten  Eyck,  3  Caines,  112,  and 
Pitcher  v.  Livingston,  4  Johns.  1.  It  was 
contended  for  the  plaintiffs  in  these  cases 
that  the  covenant  was  one  of  indemnity, 
and  therefore  that  the  measure  of  damages 
should  be  the  value  of  the  land  at  the  time 
of  the  breach.  In  Staats  v.  Ten  Eyck,  re- 
covery was  sought  for  the  appreciation  in 
the  value  of  the  land  above  the  price  paid 
by  natural  causes,  and  in  Pitcher  v.  Liv- 
ingston to  recover  above  the  purchase  price 
the  value  of  permanent  improvements  put 
upon  ihe  land  by  the  vendee.  The  argu- 
ment for  the  plaintiffs  was  rested  upon 
the  rule  of  damages  in  breaches  of  person- 
al covenants  in  other  instances,  but  the 
court  rejected  the  contention,  and  adopt- 
ed, by  analogy,  the  measure  of  damages 
applied  in  the  common-law  action  of  war- 
I'antia  chartSB,  and  in  suits  for  the  breach 
of  the  covenant  of  seisin,  viz.,  the  value 
of  the  land,  determinable  by  the  price  paid 
the  vendcjr;  and,  since  the  vendee  was 
liable  to  the  real  owner  for  mesne  profits. 


295 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


he  was  also  en  titled  to  interest  on  the  pur- 
cliase  money  for   the  time  for  wliich  such 
mesne  profits  mipjht  be  recovered  against 
him.    The  measure  of  dama.2:es  established 
in  these  cases  has  been  so  generally  adopt- 
ed in  other  states  as  to   have  become  al- 
most universal,  and  it  would  besuperfluous 
to  cite  authorities  in   its  support.     It  has 
been  announced  as  the  rule  in   this  state. 
Phipps  V.  Tarpley,  31  Miss.  433.     We  refer 
to  the  cases  above  not  for  tiie  purpose  of 
announcing-   the  rule  which    applies  as  be- 
tween vendor  and  vendee,  for   that  is   too 
well  settled  to  admit  of  controversy,  and 
is  conceded  by  counsel  for  appellant;  we 
note  them    to  show  that  the  suggestion 
now  made  that  the  covenant  is   one  of  in- 
demnity was   rejected  by  the  court  in  the 
earliest  cases.     In  a  certain  sense,  all  "cov- 
enants "  are  for  indemnit^^ ;  but  the  sense 
in  which   the  word   is  now  used,  in  argu- 
ment of  counsel,  that  redress  is  to  be  af- 
forded to  the  extent,  and  within  the  limit, 
of  the  actual  loss  sustained  bj-  the  vendee, 
in  an  action  against  his  immediate  vendor, 
it  may  be  confidently  asserted,  is   against 
the  overwhelming  current  of  authority. 
In  these  cases,  at  least,  the  decisions  are 
practically  uniform  that,  regardless  of  the 
value  of  the  land  at  the  time  of  eviction, 
the  recovery  is   measured   by  the  value  of 
the  laud  at   the   time  of  the  conveyance, 
which  value  is  conclusively  fixed   by  the 
price  paid  by  the  vendee  or  received  by  the 
vendor.      Another    proposition    may     be 
confidently    stated    as    supported    by  an 
equally  uniform  current  of  authority,  that 
the  covenant  for  quiet  enjoyment    runs 
with    the  land,   and   passes  to  all   subse- 
(pient   owners  claiming    in   the    chain    of 
title.    The  imrchaserof  land  gets,  by  oper- 
ation of  law,  not  only  the  land,  but  also 
the  covenant  of  the  first  vendor,  and  that 
as  well  Avhere  the  covenant  is  by  its  words 
to  the  vendee  only,  as   where  it  is    with 
him  and  his  assigus.    VVheu  we  come  how- 
ever to  theprecisequestion  now  presented, 
which   is  whether  a   remote    vendee   may 
recover  from   the  remote  vendor  the  pur- 
chase money  paid  by  the  first  vendee,  or  is 
limited  to  the  amount  paid   by  himself  to 
his  vendee,  we  find   direct  confiict  in   the 
decisions,  and,  so  far  as  we  have  found  the 
cases,  they  are  nearly  equal  in  number  on 
each  side.     In   Noi-th   Carolina,  (Williams 
V.     Beeman,     2     Dev.     483,)     Minnesota, 
(Moore    v.    Frankenfield.   25    Minn.    540,) 
Tennessee,    (Mette    v.    Dow,    9    Lea.    '.)3; 
Whitzman  v.  Hirsh,  87  Tenn.  513. 11  S.  W. 
Rep.     421,)    and     Maryland,    (Crisfield    v. 
Storr,  3G  Md.  129,)  it  is   held  that  such  re- 
mote  vendee  can   only   recover  what  he 
has  paid  to  his  own  vendor.    On  the  other 
hand,  it  is  held   in  South  Carolina,  (Low- 
rance    v.   Robertson,   10  S.   C.    8,)   Iowa, 
(Mischke  v.  Baughu,  .52  Iowa,  52S,  3  N.  W. 
Rep.  543,)  and   Kentucky,    (Dougherty   v. 
Duvail,  9  B.  Mon.   57,)   that  such    vendee 
may  recover  thefull  consideration  received 
by    the    defendant,    the    remote    vendor. 
Williams  v.  Beeman  was  decided   by  a  di- 
vided court,   RtiFFiN,  J.,  dissenting,  and 
Mette  V.  Dow  (followed   by  Whitzman  v. 
Hirsh)  overruled  Hopkins  v.  Lane, 9  Yerg. 
79.     In   Crisfield    v.   Storr,  36  Md.  129,  the 
court  declares   that  it  had  carefully  exam- 
ined many  authorities  upon  the  point,  and 
that  the  decided    weight  of  authority  was 


that  the  plaintiff  could  not  recover  on  the 
warranty  of  a  remote  vendor  more  than 
he  had  himself  paid  to  his  immediate  ven- 
dor, and  in  support  of  this  declaration  cites 
the  folio  wing  cases:  Booker  v.  Bell's  Ex 'rs, 
3  Bii)b,  175;  Kelly  v.  Dutch  Church,  2  Hill, 
116;  Bennet  v.  Jenkins,  13  Johns.  51;  Han- 
son V.  Buckner,  4  Dana,  253;  Wyman  v. 
Ballard,  12  Mass.  304;  Stewart  v.  Drake,  9 
N.J.  Law,  142;  Wilson  v.  Forbes,  2  Dov.39; 
Pitcher  v.  Livingston,  4  Johns.  1.  We  have 
examined  these  cases, and  find  all  of  them, 
except  Kelly  v.  Dutch  Church,  to  be  suits 
by  the  immediate  vendee,  or  his  heirs  at 
law,  against  the  immediate  vendor,  or  his 
personal  representative.  Kelly  v.  Dutch 
('hurch  was  a  suit  by  the  assignee  of  the 
lessee  against  the  lessors  of  his  assignor. 
The  trial  court  had  awarded,  as  damages, 
the  rent  reserved  in  the  lease;  thus,  as  it 
seems  to  us,  making  the  sum  paid  to  the 
lessors,  and  not  that  paid  for  the  assign- 
ment, the  measure  of  damages.  But  the 
facts  are  not  very  clearly  stated,  and  the 
case  cannot  be  held  to  decide  anything  up- 
on the  point.  The  question  seems  to  have 
been  more  fully  examined  upon  principle 
in  the  cases  of  Williams  v.  Beeman,  2  Dev. 
483 ;  Mette  v.  Dow,  9  Lea,  93,  and  Lo wrance 
V.  Robertson,  10  S.  C.  8,  than  in  any  oth- 
ers. In  Williams  V.  Beeman,  the  majority'' of 
the  court  thought  that  the  remote  vendee 
was  suing  to  recover  his  own  damages, 
and  not  those  of  the  first  vendee,  and 
therefore  should  be  restricted  to  the  act- 
ual damages  he  had  sustained.  In  Mette 
V.  Dow,  the  court  compared  the  covenant 
to  a  penal  bond,  the  recovery  on  which 
would  be  limited  to  the  actual  damages 
sustained  by  the  party  suing.  The  dis- 
sentina*  opinion  of  Rhffin,  J.,  in  Williams 
V.  Beeman,  is,  in  our  opinion,  a  complete 
reply  to  this  position.  He  says:  "The 
value  at  the  time  of  the  sale  by  the  first 
vendoris  themeasure prescribed.  Itought 
to  operate  both  ways.  If  the  vendor  be 
not  liable  for  more,  he  ought  not  to  be  for 
less.  I  understand  it  to  be  admitted  that, 
if  his  immediate  vendoe  be  evicted,  he  is 
still  liable  for  that.  I  do  not  see  why  he 
should  not  be  rquallysoto  the  assignee  as 
his  vendee.  Does  the  assignment  change 
his  covenant?  It  runs  with  the  land,  and 
he  who  buys  the  laud  buys  the  covenant. 
He  gets  the  whole  of  it.  But  it  issaid  that 
the  assignor  in  such  case  cannot  recover 
from  the  first  vendor  more  than  the  evict- 
ed vendee  gave  for  the  land,  because  this 
is  all  the  assignor  would  be  obliged  to  paj'' 
the  assignee,  and  therefore  he  hascomplete 
indemnity.  This  is  changing  the  rule  es- 
sentially. It  puts  it  upon  the  amount  of 
the  loss,  not  the  price  i)aid.  It  would 
seem  to  me  that  whoever  buys  land  with 
a  covenant  adhering  to  it  takes  it  with  all 
the  advantages  it  conferred  on  his  as- 
signor. It  is  so  in  personal  contracts,  for 
we  do  not  inquire  what  the  assignee  of 
a  bond  gave  for  it.  The  obligor  must  pay 
him  the  whole."  This  argument  seems  to 
us  uuansweral)le.  It  at  least  never  has 
been  answered  in  any  case  we  have  seen 
When  it  is  conceded  that,  by  his  covenant, 
a  vendor  binds  himself  to  return  the  pur- 
chase price  he  receives  in  the  contingency 
of  a  failure  of  the  title  conveyed,  and  that 
this  obligation  is  assigned,  by  (operation 
of  law,  to    whoever  mav   succeed  to    the 


BREACH  OP^  VENDOirS  COVENANTS. 


29^ 


title,  it  would  seem  to  follow,  as  a  corol- 
lary, that  the  recovery,  by  Avhomsot'V3r 
had,  ouffht  to  be  etjual  to  the  obligation. 
But,  under  the  rule  announced  in  Mary- 
land, Minnesota,  Tennessee,  and  North  Car- 
olina, the  obligation  of  the  covenantor  is 
variable,  and  dependent  upon  transactions 
with  which  he  is  not  connected.  In  these 
states,  a  man  selling  an  estate  to  A.  for 
•15,000  would  be  liable  to  pay  A.  that  sum 
if  he  should  be  evicted.  But  if  A.  sells  the 
same  land  to  B.  for  .f.iOO.  the  liability  of 
the  first  vendor  is  reduced  to  that  sum, 
d,nd  thus  B.,  the  purchaser  from  A.,  gets 
less  than  the  obligation  A.  held.  But  if 
B.  sells  to  C.  for  .f  5,000,  the  original  obliga- 
tion revives,  and  the  absurdity  is  presented 
of  B.'s  failing  to  get,  and  thereforeto  have, 
what  A.  owned,  and  still  transferring-  to  C. 
that  which  he  never  had.  The  rule  an- 
nounced in  Kentucky,  Iowa,  and  South 
Carolina  is  not  only  commended  by  its 
justice,  and  by  analogy  to  other  well-set- 
tled i)rinciples,  but  possesses  the  advan- 
tage of  stability  and  uniformity.  As  we 
have  said,  it  is  quite  generally  held  that, 
by  the  covenant  for  quiet  enjoyment,  the 
grantor  binds  himself  to  pay,  in  e^^ent  of 
failure  of  title,  the  then  value  of  the  land, 
which  value  is  determined  by  the  price 
paid.  Appreciation  by  natural  causes,  or 
by  improvements  put  upon  the  property 
by  the  vendee,  does  not  enlargf;  his  liabil- 
ity;  nor  is  it  decreased  by  depreciation  in 
value  from  any  cause.  By  legal  intend- 
ment the  obligation  is  as  though  the  cov- 
enantor should  say  to  the  covenantee: 
"You,  or  the  person  succeeding  to  the 
title  I  convey,  shall  hold  the  land,  or  if  you 
cannot,  by  reason  of  title  in  another,  the 
money  I  have  received  shall  be  restored  in 
lieu  of  the  land."  We  are  unable  to  per- 
ceive any  principle  upon  which  this  obliga- 
tion shall  be  diminished  because  of  the 
price,  in  consideration  of  which  it  may  be 
assigned.  We  therefore  conclude  that  the 
obligation  of  the  covenantor  is  the  same 
to  the  assignee  that  it  was  to  the  cove- 
nantee, and.  being  such,  is  governed  by  the 
same  measure  of  damages. 

The  third  and  fourth  assignments  of  er- 
ror present  the  question  whether  ta,}:ed 
costs  and  attorney's  fees  in  excess  of  the 
purchase  price,  and  interest  thereon,  may 
be  recovered  on  the  covenant.  We  are 
unable  to  discover  any  just  principle  upon 
which  costs,  whether  taxed  or  otherwise, 
have  been  allowed  to  plaintiffs- over  and 
above  the  purchase  price  received  by  the 


covenantor,  and  interest  thereon.  We 
readily  perceive  the  justice  of  the  rule  by 
which  the  value  of  the  land  at  the  time  of 
the  sale  by  him  is  accepted  as  the  measure 
of  the  liability  of  the  covenantor,  and  also 
that  the  price  paid  shall  be  taken  as  con- 
clusive evidence  of  that  value.  We  also 
appreciate  thefairnessof  allowing  interest 
on  tiie  purchase  money  as  compensation 
to  the  covenantee  for  so  long  a  time  as  he 
has  been  held  liable  to  theownerfor  mesne 
profits.  But  why  costs  in  excess  of  the 
purchase  money  and  interest  ha  ve ever  been 
allowed  we  cannot  conjecture.  In  4  Kent, 
Comm.  p.  47G,  it  is  said  :  '"The  measure  of 
damages  on  a  total  failure  of  title,  even  on 
the  covenant  of  waiTanty,  is  the  value  of 
the  land  at  the  execution  of  the  deed  ;  and 
the  evidence  of  that  value  is  the  c(jnsider- 
ation  money,  with  interest  and  costs." 
How  costs,  which  are  uncertain  in  amount, 
varying  with  reference  to  the  character  of 
the  suit,  the  number  of  witnesses,  and  the 
nature  of  the  issues  presented  in  a  pro- 
ceeding, could  ever  have  been  supposed  to 
furnish  auy  light  upon  the  past  value  of 
lands,  passes  our  comprehension.  But  so 
it  is  that,  by  practically  an  unbroken  cur- 
rent of  authority,  the  I'ule  has  been  estab- 
lished that  they  may  be  recovered  in  ad- 
dition to  the  purchase  price  and  inter- 
est, Eawle,  Gov.  c.  5);  Suth.  Dam.  302;  4 
Amer.  &  Eng.  Enc.  Law,  5G6.  Believing 
that  the  rule  allowing  any  costs  should 
never  have  been  established,  we  decline  to 
extend  it  beyond  the  limits  of  the  taxed 
costs  of  the  case.  Attorney's  fees  have 
been  allowed  in  some  states,  and  disal- 
lowed in  others.  The  conflict  in  these  de- 
cisions will  be  found  in  the  cases  cited  by 
tiie  text  writers,  and  the  Encyclopedia, 
above  referred  to.  Constrained  by  author- 
ity to  allow  the  taxed  costs,  we  return  to 
correct  principles  at  tlie  first  point  at 
which  we  may  do  so,  and  hold  that  the 
attorney's  fees  paid  by  the  covenantee  are 
not  recoverable  on  the  covenant  of  tiie 
grantor.  In  tiiis  cause,  the  court  allowed 
the  defendant  an  attorney's  fee  which, 
added  to  the  taxed  costs  and  other  dam- 
ages, exceeded  the  value  of  the  land  at  the 
time  of  the  sale,  and  interest  thereon,  and 
taxed  costs.  But,  since  the  court  also 
erred  in  fixing  the  value  of  the  land  at  $6,- 
000,  its  value  a  the  time  of  eviction,  in- 
stead of  $6,29(5,  the  price  paid  to  the  de- 
fendant, both  errors  must  be  corrected  to 
make  a  proper  result.  The  decree  is  re- 
versed, and  decree  here. 


298 


BliEACIl   OF  CUNTKACTS  RESPECTING   REAL  ESTATE. 


GUTHRIE   y.   RUSSELL  et   ux. 

(46  Iowa,  269.) 

Supreme  Court  of  luwa.     June  14,  1877. 

Appeal  from  district  court,  Jasper  county. 

Suit  in  equity  by  one  Guthrie  against 
James  H.  Russell  and  wife  to  recover*  the 
amount  plaintiff  had  been  compelled  to  pay 
to  satisfy  mortgage  on  lands  conveyed  to 
plaintiff  by  defendants,  with  covenant  of  war- 
ranty against  incumbrances.  Judgment  for 
plaintiff,  and  defendants  appeal.     Reversed. 

J.  M.  Lindley  and  R.  A.  Sankey,  for  appel- 
lants.    Ryan  Bros.,  for  appellee. 

ADAMS,  J.  In  this  case  the  deed  con- 
taining the  covenant  sued  on  conveyed  an 
interest  which  was  paramount  to  the  incum- 
brance. That  interest,  it  appears,  was  of  the 
value  of  .$1,481.57.  The  amount  necessary 
to  be  paid  by  the  junior  incumbrancer  to  re- 
deem was  $1,681.57,  but  that  covered  im- 
provements made  by  the  plaintiff.  What  the 
plaintiff  bought  of  the  defendants  was  worth, 
according  to  the  evidence,  about  $200  less. 
The  plaintiff  then  paid  $1,200,  and  acquired 
an  interest  paramount  to  all  others,  worth 
$1,481.57.  To  extinguish  an  incumbrance 
junior  to  it,  he  paid,  as  we  will  assume,  $378, 
or  gave  property  of  that  value,  and  he  now 
claims  to  recover  that  amoimt  from  his  cov- 
enantors. 

Where  real  estate  is  conveyed  with  cove- 
nants of  warranty,  it  has  been  held  in  actions 
for  breach  of  covenant  that  the  price  paid 
by  the  purchaser  aJid  received  by  the  seller 
should  be  taken,  as  between  them,  to  be  the 
value  of  the  property.  In  Baxter  v.  Brad- 
bury, 20  Me.  260,  the  court  said:  "If  the 
covenant  of  seisin  is  broken,  as  thereby  the 
title  wholly  fails,  the  law  restores  to  the 
purchaser  the  consideration  paid,  which  is 
the  agreed  value  of  the  land,  and  interest." 
In  Brandt  v.  Foster,  5  Iowa,  295,  it  was  said: 
"The  measure  of  damages  for  breach  of  this 
covenant  is  the  consideration  money  and  in- 
terest, upon  the  ground  that  this  is  the  actual 
loss."  In  Field  on  Damages  (section  461) 
the  author  says:  "In  an  action  for  the  breach 
of  the  modern  covenant  of  warranty,  the 
general  rule  of  damages  in  this  country,  in 
the  absence  of  fraud,  is  the  value  of  the  land 
at  the  time  of  the  execution  of  the  deed,  of 
which  the  actual  consideration  is  conclusive 
evidence." 

In  the  state  where  this  rule  prevails,  it  is 
held  in  actions  for  breach  of  covenants 
against  incumbrances  that  the  damages  must 
be  limited  to  the  amount  of  purchase  money 
and  interest,  although  the  amount  paid  to 
remove  the  incumbrance  might  be  much 
greater,  the  value  of  the  property  as  between 
the  parties  being  taken  to  be  the  considera- 
tion paid  for  it. 

But,  in  Knadler  v.  Sharp,  36  Iowa,  232, 
this  court  ignored  the  doctrine  that  the  con- 


sideration paid  is  to  be  taken  as  the  value- 
of  the  property  as  between  the  parties.  Ini 
that  case,  the  court  aimed  to  give  full  com- 
pensation, thus  following,  to  some  extent, 
the  rule  adopted  in  Massachiisetts  and  some 
other  states,  where  the  limit  of  recovery  in 
an  action  for  breach  of  covenant  is  the  actual 
value  of  the  property  at  the  time  of  eviction, 
or  at  the  time  of  the  extinguishment  of  the 
incumbrance.  Yet,  we  cannot  think  that  the 
court  designed  to  depart  altogether  from  the- 
other  rule  above  set  forth,  which  is  in  ac- 
cordance with  the  decided  weight  of  author- 
ity, and  which  was  expressly  held  by  this 
court,  as  we  have  seen,  in  Brandt  v.  Foster. 
We  have  no  doubt  that  if,  in  Knadler  v.. 
Sharp,  the  incumbrance  paid  off  had  exceed- 
ed the  purchase  money  and  interest,  the 
plaintiff  would  have  been  limited  in  his  re- 
covery to  that  amount. 

Under  the  decisions,  then,  of  this  court, 
the  limitation  imposed  upon  the  covenantee's 
recovery  must  be  regarded  as  placed  more 
upon  the  ground  that  the  conevantor  needs 
that  protection  than  upon  the  ground  that 
the  consideration  paid  is  fairly  the  limit  of 
compensation. 

In  Staats  v.  Ten  Eyck's  Ex'rs,  3  Caines. 
Ill,  Mr.  Justice  Livingston  said:  "To  find 
a  proper  rule  of  damages  in  a  case  like  this 
is  a  work  of  some  difticulty.  No  one  will 
be  entirely  free  from  objection,  or  will  not 
at  times  work  injustice.  To  refund  the  con- 
sideration, even  with  interest,  may  be  a  very 
inadequate  compensation  when  the  property 
is  greatly  enhanced  in  value,  and  when  the^ 
same  money  might  have  been  laid  out  to- 
equal  advantage  elsewhere.  Yet,  to  make- 
this  increased  value  the  criterion,  where  there- 
has  been  no  fraud,  may  also  be  attended 
with  injustice  if  not  with  ruin." 

Proceeding  then  upon  the  rule,  as  indicated 
in  Knadler  v.  Sharp,  that  the  covenantee  is 
entitled  to  full  compensation,  subject  only 
to  the  limitation  needed  by  the  covenantor 
for  his  just  protection,  we  come  to  inquire 
whether  it  will  enable  the  plaintiff  to  recover. 
If  the  premises  were  of  such  value  that  he 
could  better  afford  to  pay  the  amount  which, 
he  did  and  retain  them  than  suffer  a  redemp- 
tion and  eviction,  he  was,  we  think,  justified: 
in  doing  so,  and  ought  to  be  allowed  to  re- 
cover of  the  defendant  notwithstanding  he 
received  and  retains  an  interest  paramount 
to  the  incumbrance  of  greater  value  than  the 
amount  which  he  paid  for  that  interest. 
Further  than  that  we  think  that  law  would 
not  justify  us  in  going.  It  should  always- 
appear  that  the  amount  paid  by  the  cove- 
nantee was  fairly  paid,  or  that  the  incum- 
brance, if  not  removed,  was  one  which  sub- 
stantially affected  the  value  of  the  property. 
Grant  v.  Tallman,  20  N.  Y.  191. 

The  question  then  arises:  Were  the  prem- 
ises of  greater  value  than  the  amount  which 
the  plaintiff  would  have  received  upon  re- 
demption before  eviction?     The  amount  nee- 


BREACH  OF  VENDOR'S  COA'ENANTS. 


299 


essary  to  redeem  had  come  to  be  nearly  $2,- 
000.  The  amoimt  paid  by  plaintiff  to  the 
defendant  was  $l,2tH3.  As  between  the  par- 
ties, we  think  that  the  consideration  paid 
should  be  taken  to  be  at  least  prima  facie 
evidence  of  the  value.  If  the  plaintiff'  claims 
to  recover  upon  the  ground  that  they  were 
worth,  not  only  more  than  that,  but  more 
than  the  amount  which  he  would  have  re 
ceived  upon  redemption,  he  should  have 
shown  it  in  evidence.  We  are  not  satisfied 
that  the  amount  paid  was  fairly  paid.  If 
the  premises  were  really  not  worth  redeem- 
ing, in  other  words  if  the  incumbrance  paid 
off  was  really  of  no  value,  there  is  ground 
for  suspecting  that  there  was  collusion  be- 
tween the  plaintiff  and  incumbrancer.  Pos- 
sibly the  plaintiff"  would  have  been  justified 
in  paying  something  for  the  extinguishment 
of  the  incumbrance,  even  if  it  had  no  value, 
but  in  such  case  it  would  be  incumbent  upon 
him  to  show  that  the  amount  .paid  was  rea- 


sonable. We  cannot  regard  the  defendants' 
covenant  as  extending  further  than  that. 

It  may  be  said  that  this  rule  does  not  af- 
ford the  plaintiff  complete  protection,— that 
possibly  the  incumbrancer  was  unreasonable;, 
but  it  should  be  borne  in  mind  that  the  plain- 
tiff bought  with  constructive  notice  of  the 
incumbrance.  If  he  was  unaware  of  its  ex- 
istence it  was  his  own  fault.  Perhaps  it 
would  be  fair  to  presume  that  he  bought  with 
reference  to  it.  At  all  events,  it  seems  clear 
to  us  that  while  holding  an  interest  under 
his  deed  of  greater  value  than  he  paid  for  it, 
he  cannot  ])roperly  claim  the  right  to  pay 
an  unreasonable  amount  to  remove  the  in- 
cumbrance and  to  recover  the  amount  thus 
paid  of  the  defendants. 

In  Knadler  v.  Sharp,  it  seems  to  have  been 
taken  for  granted  that  the  amoimt  paid  was 
reasonable.  There  is,  therefore,  nothing  in 
the  decision  in  that  case  which  necessarily 
conflicts  with  this.     Reversed. 


0 '-:,.-. 


300 


BKEAOH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


POPOSKEY  V.  MUNKWITZ. 
(32  N.  W.  35,  68  Wis.  322.) 
Supreme  Court  of  AVisconsin.    March  1,  1887. 
Appeal  from  circuit  court,  Milwaukee  coun- 
ty. 

The  action  is  by  a  lessee  against  his  lessor 
for  failure  of  the  latter  to  give  the  lessee 
possession  of  the  letised  premises  according 
to  the  covenants  in  the  lease.     Under  date  of 
October  22,  1884,  the  parties  executed  an  in- 
denture of  lease   in  and  by  which  the  de- 
fendant leased  to  the  plaintiff  his  store,  No. 
•411    Broadway,    in   the  city   of   Milwaukee, 
from  November  15,  1SS4,  to  May  1,  ISDO,  at 
a  yearly  rent  therein  reserved,  and  therein 
covenanted  that,  on  paying  such  rent,  and 
performing  the  conditions  contained  in  such 
lease  to  be  performed  by  him,  the  plaintiff 
should  have  the  quiet  and  peaceful  posses- 
sion of  the  leased  premises  during  such  term. 
The  defendant  was  unable  to  give  the  plain- 
tiff  the   possession  of   the   leased   store   be- 
cause he  had  theretofore  leased  the  same  to 
Wilde  &  Uhlig  for  three  years,  commencing 
May  1,  1883,  and  Uhlig  was  lawfully  in  pos- 
session  thereof  under  such  lease   when  the 
plaintiff's  term  under  his  lease  commenced, 
and   so   continued    in   possession   thereafter. 
The  plaintiff  paid  the  defendant  rent  until 
December   1,   LSSl,   at  the  execution   of  the 
lease,  being  $41.G7,  as  stipulated  in  the  lease, 
and  pei-formed  all  his  covenants  therein  con- 
tained.    The  plaintiff  also  put  some  goods  in 
the  store  with  the  consent  of  the  defendant, 
but   was   required    by    Uhlig   to   take  them 
away.     This  involved  an  expenditure  by  the 
plaintiff  of  $14.40.    It  is  averred  in  the  com- 
plaint that,  for  12  years  before  the  making 
of  the  lease  first  above  mentioned,  the  plain- 
tiff had  caiTied  on,  in  the  city  of  Milwau- 
kee, and  for  the  last  five  years  in  the  vicinity 
of  the  leased  store,  a  wholesale  and  retail 
business  in  pictures,  picture-frames,  and  ar- 
tist's  materials,  and  in  manufacturing   pic- 
ture-frames, and  had  a  very  large  ajid  lucra- 
tive  custom    and    patronage   established    in 
said   business;    that  he  leased  the  store  No. 
411  Broadway  for  the  purpose  of  carrying  on 
and  continuing  the  same  business  therein,  of 
which  the  defendant  had  notice;    that  such 
store  was  especially  well  located,  and  adapt- 
ed   to    the   x-equirements   of    plaintiff's    said 
business;    that,  relying  upon  having  posses- 
sion of  the  leased  store  at  the  stipulated  time 
in   which  to  cari-y  on   his  business,  he  pur- 
chased a  large  stock  of  goods  adapted  to  the 
holiday   trade,   in   December,    which   is   the 
most  profitable  trade  during  the  year;    and 
that  he  lost  this  trade  by  reason  of  his  fail- 
ure to  obtain  possession  of  the  store.     Also 
that,  upon  the  refusal  of  the  defendant  to 
give  him  possession  of  the  store,  the  plain- 
tiff diligently  endeavored,  but  without  suc- 
cess, to  obtain  another  store,  suited  to  the  re- 
quirements of  his  business,  and  that  the  rent- 


al value  of  the  leased  store  for  the  term  of 
the  lease  is  at  least  $2,000  more  than  the  rent 
thereof  reserved  in  the  lease.  The  closing 
paragraph  of  the  complaint  is  as  follows: 
"That,  by  reason  of  the  premises,  plaintiff's 
said  business  has  been  broken  up  and  de- 
stroyed, and  his  trade  and  custom  gone,  and 
his  stock  of  goods  purchased  to  carry  on  his 
business  at  said  store  so  leased  has  become 
greatly  depreciated  and  destroyed  in  value, 
and  plaintiff  has  lost  the  profits  which  he 
would  and  could  have  made  in  continuing 
and  carrying  on  his  aforesaid  business  at 
said  leased  premises  since  said  fifteenth  day 
of  November,  1884,  had  said  leased  premises 
been  surrendered  and  delivered  up  to  him  as 
agreed  by  defendant,  and  his  said  leasehold 
interest  in  said  premises  been  lost  and  de- 
stroyed, to  the  damage  of  plaintiff  in  the  suto 
of  five  thousand  dollars."  Judgment  for  $5,- 
000  and  costs  is  demanded.  The  answer  de- 
nies in  detail  each  of  the  above  averments, 
except  that  the  defendant  owned  the  store 
No.  411  Broadway,  and  executed  a  lease 
thereof  to  the  plaintiff  as  alleged  in  the  com- 
plaint. 

The  controversy  on  the  trial  was  confined 
to  the  question  of  damages.  The  plaintiff 
oft'ered  testimony  for  the  purpose  of  proving 
the  special  damages  stated  in  the  complaint, 
but  the  same  was  rejected,  and  the  judge 
held  that  the  mea.sure  of  the  plaintiff's  dam- 
ages is  the  difference  between  the  rent  re- 
served in  the  lease  and  the  actual  rental 
value  of  the  store,  together  with  the  expense 
of  removing  the  plaintiff's  goods  (before  men- 
tioned) from  the  store  after  the  term  of  the 
lease  commenced,  and  confined  the  testimo- 
ny to  those  elements  of  damages.  Only  a 
single  question  was  submitted  to  the  jury, 
which  is  as  follows:  "What  was  the  actual 
value  per  annum  of  the  premises  411  Broad- 
way, Milwaukee,  described  in  the  lease  from 
defendant  to  plaintiff,  from  and  after  No- 
vember 15,  1884?"  The  jury  answered  $1,- 
200.  The  rent  reserved  in  the  lease  until 
May  1,  1887,  is  .?1,000,  and  $1,200  thereafter. 
On  April  5,  1886,  the  court  gave  judgment 
for  the  plaintiff"  for  $272.14  damages,  and  for 
costs  of  suit.  It  is  recited  in  the  order  for 
judgment  that  the  plaintiff  admi,tted  he  went 
into  possession  of  the  leased  store  March  1, 
1886.  It  is  understood  that  the  judgment  is 
made  up  of  $200  per  annum  (being  the  ex- 
cess in  the  value  of  the  rent  as  found  by  the 
jury,  over  and  above  the  rent  stipulated  in 
the  lease)  from  November  15,  1884,  to  Marcu 
1,  1886.  and  the  item  of  $14.40  above  men- 
tioned. The  item  of  $41.67  paid  defendant 
on  account  of  rent  was  disallowed  for  ihe 
reason  (as  stated  by  the  court)  that  the  lease 
to  plaintiff  "assigned,  by  operation  of  law, 
the  premises  during  Uhlig's  term  to  Mr.  Po- 
poskey,  and  he  has  the  right  to  recover  the 
rent  from  Mr.  Uhlig."  The  plaintiff  appeals 
from  the  judgment. 


BREACH  OF  LANDLORD'S  COVENANTS. 


3>1 


Dey  &  Friend,  for  appellant.  Jenkins, 
Winkler,  Fish  &  Smith,  for  respondent. 

LYON,  .T.  This  action  was  brought  to  re- 
cover damages  for  thg  failure  of  the  defend- 
ant to  put  the  plaintiff  in  possession  of  the 
store  No.  411  Broadway,  Milwaukee,  leased 
by  the  former  to  the  latter,  at  the  time  stipu- 
lated in  the  lease  as  the  commencement  o^ 
the  term.  It  is  substantially  an  action  for  a 
breach  of  the  covenant  fol-  quiet  enjoyment 
contained  in  the  lease.  1  Tayl.  Laudl.  &  Ten. 
§  309.  This  appeal  presents  for  determina- 
tion the  question,  what  is  the  true  rule  of 
damages  for  a  breach  of  that  covenant  in 
that  case,  in  view  of  the  facts  proved  and  of- 
fered to  be  proved  thei-ein?  The  rule  is  un- 
doubtedly the  same  as  in  an  action  for  a 
breach  of  covenants  for  title  in  an  absolute 
conveyance;  that  is  to  say,  had  the  plaintiff 
purchased  the  store  No.  411  Broadway  of  the 
defendant,  and  taken  an  absolute  convey- 
ance thereof,  instead  of  a  lease  for  five  or 
more  years,  under  the  same  circumstances 
which  existed  when  the  lease  was  executed, 
the  measure  of  his  damages  for  a  breach  of 
the  covenants  for  title  in  such  conveyance 
would  be  the  same  that  it  is  for  a  breach  of 
the  covenant  for  quiet  enjoyment  in  the 
lease.  3  Suth.  Dam.  147;  Blossom  v.  Knox, 
3  Pin.  262.  Indeed,  the  covenant  for  quiet 
enjoj^ment  is  one  of  the  covenants  for  title  in 
a  conveyance.  Rawle,  Gov.  17.  It  is  also 
said  to  be  "an  assurance  consequent  upon  a 
defective  title."    Id.  125. 

The  general  rule  of  damages  which  ob- 
tains in  England  and  many  of  our  sister 
states  for  a  breach  of  covenant  for  title  was 
first  authoritatively  laid  down  in  1775,  in  the 
case  of  the  common  pleas  of  Flureau  v. 
Thornhill,  2  W.  Bl.  1078.  The  defendant 
covenanted  to  sell  the  plaintiff  a  rent  for  a 
term  of  years  issuing  out  of  leasehold  prem- 
ises, but.  without  fault  on  his  part,  the  de- 
fendant was  unable  to  make  good  title  there- 
to. The  plaintiff  claimed  damages  for  the 
loss  of  his  bargain,  but  it  was  held  that  he 
was  not  entitled  thereto.  De  Grey,  C.  J., 
said:  "Upon  a  contract  for  a  purchase,  if  the 
title  proves  bad,  and  the  vendor  is  (without 
fraud)  incapable  of  making  a  good  one,  I  do 
not  think  the  purchaser  can  be  entitled  to 
any  damages  for  the  fancied  goodness  of  the 
bargain  which  he  supposes  he  has  lost." 
Blackstone,  J.,  said:  "These  contracts  ai'e 
merely  upon  condition,  frequently  expressed, 
but  always  implied,  that  the  vendor  has  a 
good  title."  The  rule  of  the  above  case 
has  been  much  considered  in  both  England 
and  this  country;  and  while  its  scope  has 
been  more  clearly  defined,  and  its  applica- 
tion somewhat  limited  by  later  adjudica- 
tions, the  rule  itself,  as  applied  to  cases  in 
which  the  vendor  honestly  believed  he  had  a 
good  title,  but  the  title  failed  for  some  de- 
fect not  known  to  him,  and  of  which  he  was 


not  chargeable  with  notice,  is  now  firmly  es- 
tablished in  the  jurisprudence  of  England  by 
the  judgment  of  the  house  of  lords  in  Bain 
V.  Fothergill,  L.  R.  7  Eng.  &  Ir.  App.  158. 
As  already  observed,  the  rule  prevails  in  sev- 
eral of  the  United  States,  including  this 
state,  under  the  limitations  just  mentioned,  of 
good  faith  and  excusable  ignorance  of  the 
vendor  of  defects  in  his  title.  Indeed,  these 
are  scarcely  limitations,  but  rather  an  inter- 
pretation of  the  .qualification  "without 
fraud,"  in  the  opinion  by  De  Grey,  C.  J.,  in 
the  principal  case.  The  rule  as  it  now  stands 
has  been  applied  in  this  state  in  Rich  v. 
Johnson,  2  Pin.  88;  Blossom  v.  Knox,  3  Pin. 
262;  Nichol  v.  Alexander,  28  Wis.  118;  Mes- 
&er  V.  Oestreich,  52  Wis.  684,  10  N.  W.  6,  and 
in  other  cases. 

Under  this  or  any  other  rule,  the  plaintift 
is  entitled  to  recover  the  consideration  paid 
by  him  on  account  of  the  purchase.  Hence, 
in  the  present  case,  whatever  may  be  the 
measure  of  damages,  the  plaintiff  should 
have  recovered  the  amount  he  advanced  for 
rent,  and  interest  thereon.  The  reason  giv- 
en by  the  circuit  judge  for  excluding  this 
amount  from  the  plaintiff's  recovery,  to-wit, 
that  he  could  recover  the  rent  from  Uhlig, 
the  tenant  under  the  paramount  lease,  is  con- 
ceived to  be  unsound.  The  plaintiff  did  not 
purchase  a  term  subject  to  the  lease  of  Uh- 
lig, but  an  absolute  term;  and  while  he 
might,  perhaps,  have  treated  his  lease  as  an 
assignment  of  the  rents  accruing  under  the 
prior  lease,  and  collected  the  same  from  Uh- 
lig, there  is  no  rule  of  law  which  compels 
him  to  do  so.  Indeed,  had  he  done  so,  it  pos- 
sibly might  have  operated  as  a  waiver  of 
any  claim  for  damages  for  the  breach  of  the 
covenant  sued  upon. 

The  limitations  of  the  rule  of  Flureau  v. 
Thornhill,  or  rather  the  exceptions  thereto, 
are  well  stated  in  3  Suth.  Dam.  149,  as  fol- 
lows: "Where  a  lessor  knows,  or  is  charge- 
able with  notice,  of  such  defect  of  his  title 
that  he  cannot  assure  to  his  lessee  quiet  en- 
joyment for  the  term  which  such  lessor  as- 
sumes to  grant;  where  he  refuses,  in  viola- 
tion of  his  agreement,  to  give  a  lease,  or  pos- 
session pursuant  to  a  lease,  having  the  ability 
to  fulfill,  as  well  as  where  the  lessor  evicts 
his  tenant,— he  is  chargeable  with  full  dam- 
ages for  compensation,  and  the  doctrine  of 
Flureau  v.  Thornhill  has  no  application.  On 
this  general  proposition  the  authorities  agree. 
In  such  cases  the  difference  between  the  rent 
to  be  paid  and  the  actual  value  of  the  prem- 
ises at  the  time  of  the  breach  for  the  unex- 
pired term  is  considered  the  natural  and 
proximate  damages.  Where  the  lessee  is  de- 
prived of  the  possession  and  enjoyment  un- 
der such  circumstances,  the  lessor  is  either 
guilty  of  intentional  wrong,  or  he  has  made 
the  lease,  and  assumed  the  obligation  to  as- 
sure the  lessee's  quiet  enjoyment,  with  a 
culpable  ignorance  of  defects  in  his  title,  or 


:502 


BREACH  OF  CONTUACTS  RESI'KCTING   REAL  ESTATE. 


on  the  chance  of  afterwards  acquiring  one. 
In  neither  case  has  he  any  claim  to  favorable 
consideration;  and  he  is  not  excused,  on  the 
doctrine  of  Flureau  v.  Thornhill,  from  mak- 
ing good  any  loss  which  the  lessee  may  suf- 
fer from  being  deprived  of  the  demised  prem- 
ises for  the  whole  or  any  part  of  the  stipu- 
lated term."  This  quotation  doubtless  con- 
tains a  correct  statement  of  the  law  acted 
upon  in  all  the  states,  as  well  in  those  which 
have  adopted  the  rule  in  Flureau  v.  Thorn- 
hill  as  in  those  which  have  not. 

We  are  clear  that  this  case  comes  within 
tlie  exceptions.  When  the  defendant  leased 
the  store  to  the  plaintiff,  he  knew  that  there 
was  a  valid  paramount  lease  upon  the  prem- 
ises, executed  by  himself  to  Wilde  &  Uhlig, 
having  17  or  18  months  to  run  after  the  com- 
mencement of  the  plaintiff's  term.  There  is 
no  claim  that  the  former  lessees  had  for- 
feited their  lease.  Indeed,  the  defendant  aft- 
erwards made  an  unsuccessful  attempt  to 
evict  them  by  legal  proceedings  for  an  al- 
leged breach  of  the  covenants  of  their  lease, 
occurring  after  the  execution  of  the  plaintiff's 
lease.  But  it  was  held  there  was  no  breach. 
Munkwitz  v.  Uhlig,  64  Wis.  380,  25  JN.  W. 
424.  These  proceedings  are  in  evidence. 
Hence  the  defendant  knew,  when  he  leased 
the  store  to  the  plaintiff,  of  a  defect  in  his 
Title  which  prevented  him  from  assuring  to 
the  plaintiff  the  quiet  enjoyment  of  the  leas- 
ed premises.  He  thus  entered  into  the  con- 
tract on  the  chance  of  being  able  afterwards 
to  avoid,  in  some  way,  his  lease  to  Wilde  & 
Uhlig,  but  having  no  legal  cause  for  avoiding 
it.  These  facts  deprive  him  of  the  protec- 
tion of  the  rule  in  Flureau  v.  Thornhill,  and 
bring  the  lease  within  the  rale  above  quoted 
from  Sutherland.  In  other  words,  the  case 
is  thus  brought  within  the  general  rule 
which  prevails  in  actions  for  breaches  of  con- 
tracts, that  the  plaintiff  shall  recover  the  loss 
he  has  proximately  sustained  by  reason  of 
the  breach. 

But,  in  order  to  determine  what  elements 
of  loss  come  within  the  general  rule,  it  is 
necessary  to  apply  other  rules  of  law  to  the 
particular  case.  In  the  present  case  (per- 
haps in  most  cases)  the  rules  laid  down  in 
the  leading  case  of  Hadley  v.  Baxendale,  9 
Exch.  341,  20  Eng.  Law  &  Eq.  398,  which 
liave  many  times  been  approved  by  this  court, 
.are  sufficient.  Shepard  v.  Milwaukee  Gas- 
light Co.,  15  Wis.  318;.  Hibbard  v.  W.  U. 
Tel.  Co.,  33  Wis.  558;  Caudee  v.  W.  U.  Tel. 
Co.,  34  Wis.  471;  Walsh  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  42  Wis.  30;  Hammer  v.  Schoen- 
f elder,  47  Wis.  455,  2  N.  W.  112.9;  Brown  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  54  Wis.  342.  11 
N.  W.  350,  911;  Cockburn  v.  Ashland  Lum- 
l)er  Co.,  54  Wis.  619,  12  N.  W.  49;  McNa- 
mara  v.  Clintonville,  02  Wis.  207,  22  N.  W. 
472;  Thomas,  B.  &  W.  Manuf'g  Co.  v.  Wa- 
bash. St.  L.  &  P.  R.  Co..  02  Wis.  642,  22 
N.  W.  827;  see,  also,  Richardson  v.  Chyno- 
-\veth,  20  Wis.  053.     See,  also,  a  very  learned 


and  elaborate  note  on  the  rule  in  the  princi- 
pal case,  in  which  a  great  number  of  cases 
are  cited  and  discussed,  in  1  Sedgw.  Dam. 
218-234.     These  rules  can  best  be  stated  by 
a  'quotation  from  the  opinion  in  the  principal 
case  by  Alderson,  B.     He  says:    "Where  two 
parties  have  made  a  contract  which  one  of 
them   has   broken,   the   damages   which   the 
other  party  ought  to  receive  in  respect   of 
such  breach  of  contract  should  be  such  as 
may  fairly  and  reasonably  be  considered  ei- 
ther arising  natiu'ally,  i.  e.,  according  to  the 
usual  course  of  things,  from  such  breach  of 
contract  itself,  or  such  as  may  reasonably 
be  supposed  to  have  been  in  the  contempla- 
tion of  both  parties,  at  the  time  they  made 
the  contract,  as  the  probable  result  of  the 
breach  of  it.     Now.  if  the  special   circum- 
stances under  which  the  contract  was  actual- 
ly made  were  communicated  by  the  plaintiffs 
to  the  defendants,  and  thus  known  to  both 
parties,    the    damages    resulting    from    the 
breach  of  such  a  contract,  which  they  would 
reasonably  contemplate,  would  be  the  amount 
of  injury  which  would  ordinarily  follow  from 
a  breach  of  contract  under  these  special  cir- 
cumstances   so   known   and   communicated. 
But,  on  the  other  hand,  if  these  special  cir- 
cumstances   were    wholly   unknown   to    the 
party  breaking  the  contract,  he,  at  the  most, 
could  only  be  supposed  to  have  had  in  his 
contemplation  the  amount  of  injury  which 
would  arise  generally,  and  in  the  great  mul- 
titude of  cases,  not  affected  by  any  special 
circumstances   from  such  a  breach  of  con- 
tract.    For,   had   the  special   circumstances 
been  known,  the  parties  might  have  specially 
provided  for  the  breach  of  contract  by  spe- 
cial terms  as  to  the  damages  in  that  case, 
and  of  this  advantage  it  would  be  very  un- 
just to  deprive  them." 

Another  rule  having  its  foundation  in  nat- 
ural justice  should  here  be  stated.  In  any 
case  of  a  breach  of  contract  the  party  in- 
jured should  use  reasonable  diligence,  and 
make  all  reasonable  effort,  to  reduce  to  a 
minimum  the  damages  resulting  from  such 
breach.  The  necessary  expenses  incurred  by 
him  in  so  doing  may  be  recovered  in  an  ac- 
tion for  such  breach.  This  rule  was  early 
laid  down  by  this  court  in  Bradley  v.  Den- 
ton, 3  Wis.  557,  and  has  been  followed  since. 
For  a  full  statement  of  the  rule,  and  refer- 
ences to  numerous  adjudications  sustaining 
it,  see  1  Suth.  Dam.  148.  Under  this  rule, 
when  the  plaintiff  was  informed  that  the  de- 
fendant could  not  give  him  possession  of  the 
store  as  he  had  covenanted  to  do,  (which 
information  was  received  by  the  plaintiff  No- 
vember 7th,  being  eight  days  before  the  com- 
mencement of  his  term,)  it  became  his  duty 
to  use  all  reasonable  efforts  to  procure  an- 
other suitable  place  in  which  to  carry  on  his 
business  if  the  damages  which  otherwise 
would  result  from  the  breach  of  the  defend- 
ant's covenant  would  be  thereby  diminished. 
"^Ve  do  not  think,  however,  the  plaintiff  could 


BREACH  OF  LANDLOJtD'8  COVENANTS. 


303 


lie  lawfully  required  to  take  another  store 
out  of  the  vicinity  in  which  he  was  doing 
business  when  he  took  the  lease  from  the  de- 
fendant. By  removing  to  a  remote  part  of  the 
•city,  he  might,  and  probably  would,  to  some 
•extent  at  least,  have  lost  the  good- will  of 
his  business,  which  it  is  alleged  he  had  car- 
ried on  successfully  for  a  series  of  years  in 
the  vicinity  of  the  store  No.  411  Broadway. 
Neither  was  he  required  to  take  another 
«tore  not  reasonably  well  adapted  to  his  busi- 
ness. 

From  the  foregoing  rules,  and  the  partial 
application  of  them  already  suggested,  we 
think  the  following  propositions  are  estab- 
lished: (1)  The  plaintiff  is  entitled  to  recov- 
er the  sum  he  paid  as  rent  when  the  lease 
w^as  executed,  and  interest  thereon;  and  also 
the  necessary  expense  of  removing  some  of 
his  goods  to  the  store,  with  defendant's  con- 
sent, and  taking  them  therefrom  after  he 
failed  to  get  possession  of  the  store.  (2)  If 
the  defendant  did  not  know,  when  he  exe- 
•cuted  the  lease,  the  purposes  for  which  the 
plaintiff  hired  the  store,  or  the  uses  to  which 
he  intended  to  put  it,  the  measure  of  the 
plaintiff's  damages  for  breach  of  the  cove- 
nant for  quiet  enjoyment  (in  addition  to  the 
special  damages  just  mentioned)  would  be 
that  adopted  by  the  trial  judge;  that  is,  the 
difference  between  the  rent  reserved  in  the 
lease  and  the  actual  rental  value  of  the  store, 
"Without  regard  to  what  it  is  used  for,  which 
the  jury  found  to  be  $200  per  annum.  All 
these  are  natural  and  proximate  damages  re- 
sulting from  the  breach.  (3)  If  the  defend- 
ant, then,  knew  that  the  plaintiff  was  carry- 
ing on  the  business  stated  in  the  complaint, 
and  hired  the  store  No.  411  Broadway  for 
the  purpose  of  continuing  the  same  business 
therein,  and  if,  in  the  exercise  of  reasonable 
diligence,  the  plaintiff  might  have  procured 
another  store,  reasonably  well  adapted  to  his 
business  and  in  the  same  vicinity,  that  is,  in 
a  location  in  which  he  could  have  preserved 
and  retained  substantially  the  good-will  of 
his  former  business,  the  rule  of  damages,  in 
addition  to  the  special  items  first  above  men- 
tioned, will  be  the  difference  between  the  rent 
reserved  in  the  lease  and  the  actual  rental 
value  of  the  leased  store  for  the  purpose  of 
•carrying  on  such  business  therein.  In  such 
case  the  actual  rental  value  would  ordinarily 
"be  measured  by  the  amount  of  rent  the  plain- 
tiff would  be  compelled  to  pay  for  another 
■store  equally  well  adapted  to  his  business. 
If  he  could  obtain  another  store  for  the  same 
rent  he  was  to  pay  the  defendant,  or  less,  of 
•course  he  would  suffer  no  general  damages 
for  the  defendant's  breach  of  covenant,  and 
Ills  recoveiy  in  that  behalf  would  be  con- 
fined to  nominal  damages,  in  addition  to  the 
special  damages  first  above  mentioned.  If, 
however,  the  expenses  of  removing  to  an- 
■other  store  would  have  been  greater  than 
they  would  have  been  in  removing  to  the 
store  No.  411  Broadway,  such  excess  would 


also  be  a  proper  item  of  damages.  (4)  If 
the  plaintiff"  could  reasonably  have  procured 
another  suitable  store  for  his  business,  he 
cannot  recover  for  damages  to  his  business, 
because  by  leasing,  and  continuing  his  busi- 
ness in,  such  other  store,  he  might  have 
avoided  such  damages.  (5)  But  knowing  that 
the  plaintiff"  hired  the  store  for  the  purpose 
of  continuing  his  former  business  therein,  (if 
he  did  know  it,)  and  having  executed  the 
lease  with  knowledge  that  he  could  uot  put 
the  plaintiff"  in  possession  of  the  store  at  the 
stipulated  time  because  of  his  prior  outstand- 
ing lease,  the  defendant  took  the  risk  of  the 
plaintiff  being  able  to  procure  another  suit- 
able store  for  his  business,  the  inability  of 
the  latter  to  do  so  would  render  the  defend- 
ant liable  for  the  damages  resulting  to  plain- 
tiff's business  by  reason  of  the  breach  of 
covenant  complained  of.  This  is  plainly 
within  the  rule  of  Hadley  v.  Baxendale,  su- 
pra, because,  under  such  circumstances,  the 
parties  may  fairly  be  considered  to  have  con- 
templated that  the  breach  of  covenant  would 
necessarily  destroy  or  greatly  impair  the 
value  of  plaintift"'s  business.  It  should  be 
observed  that,  if  the  plaintiff  recovers  for 
damages  to  his  business,  he  cannot  also  re- 
cover the  value  of  his  lease  under  the  above 
second  or  third  proposition,  because  such 
value  is  necessarily  a  factor  in  estimating 
the  damages  to  the  business.  Smith  v.  Wun- 
derlich,  70  111.  426,  (433.)  He  ma-y,  however, 
in  that  case,  recover  the  special  damages 
mentioned  in  the  first  proposition,  for  these 
are  not  such  factors. 

It  follows  that  the  testimony  which  was  of- 
fered by  the  plaintiff  to  show  that  the  de- 
fendant knew,  when  he  executed  the  lease  to 
the  plaintiff",  that  the  latter  was  carrying  on 
the  business  before  mentioned  in  the  same 
vicinity,  and  took  the  lease  of  the  store  for 
the  purpose  and  with  the  intention  of  contin- 
uing such  business  therein,  and  that  he  was 
unable,  in  the  exercise  of  due  diligence,  to 
find  another  store  suitable  for  his  business, 
was  competent,  and  should  have  been  re- 
ceived. Further,  after  the  plaintiff  makes  a 
prima  facie  case  entitling  him  to  recover  for 
damages  to  his  business,  proof  should  be  re- 
ceived, under  the  pleadings,  to  show  the 
value  of  such  business. 

We  agree  with  with  Mr.  Justice  Paine,  in 
Shepard  v.  Gas-light  Co.,  15  Wis.  318,  that 
to  ascertain  the  value  of  a  business  an  in- 
quiry as  to  the  profits  thereof  is  necessarj^ 
Probable  "value"  and  "net  profits"  are  con- 
vertible terms  as  applied  to  a  business.  Yet 
the  law  in  many  cases  gives  damages  for 
breaches  of  contracts,  based  on  prospective 
profits,  when  they  are  fairly  within  the  con- 
templation of  the  parties,  are  uot  too  remote 
and  conjectural,  and  are  susceptible  of  being 
ascertained  with  reasonable  certainty.  If 
the  plaintiff  shows  himself  entitled  to  re- 
cover for  damages  to  his  business,  the  char- 
acter, extent,   and  value  of  liis  established 


304 


BREACH  OF  GONTKACTS  RESPECTING  REAL  ESTATE. 


business  when  the  lease  was  executed,  and 
before,  will  furnish  a  guide  to  the  juiT  in  as- 
sessing the  prospective  and  probable  value 
thereof,  had  the  plaintiff  been  permitted  to 
transfer  it  to  the  store  No.  411  Broadway. 
Carried  on  in  the  immediate  vicinity  of  the 
old  stand,  and  by  the  same  person,  presum- 
ably tlio  business  would  have  been  equally 
prosperous.  This  presumption  may  be  re- 
butted by  proof  of  facts  and  circumstances 
tending  to  show  that  the  business  would 
probably  have  been  less  remunerative  had  it 
been  so  continued. 

It  was  said  in  argument  that  no  case  can  be 
found  which  gives  damages  for  the  loss  of 
anticipated  profits,  because  a  landlord  fails 
to  give  possession  at  the  time  agreed  upon. 
This  is  scarcely  a  correct  statement.  The 
case  of  Ward  v.  Smith,  11  Price,  19,  cited 
by  Mr.  Justice  Paine  in  Shepard  v.  Gas-light 
Co.,  supra,  seems  to  be  just  such  a  case.  It 
is  conceded  that  if  the  plaintiff  had  not  a 
business  already  built  up  and  established  in 
the  same  vicinity,  which,  with  its  good-will, 
could  have  been  trausfen-ed  to  the  store  No. 


411  Broadway,  there  would  be  no  basis  upon 
which  to  estimate  the  prospective  value  of 
the  business  which  the  plaintiff  would  have 
done  there  had  he  obtained  possession,  and 
carried  on  the  business  therein.  In  such  case, 
profits  would  probably  be  too  conjectural  and 
uncex-tain  to  be  the  basis  of  a  recovery. 
Some  of  the  cases  refer  to  this  distinction. 
In  Chapman  v.  Kirby,  49  111.  211,  the  com-t, 
in  speaking  of  the  case  of  Green  v.  Williams. 
45  111.  206,  say:  "In  that  case  the  lessee  had 
not  entered  upon  the  term,  had  not  built  up 
or  established  a  business,  and  had  not  suf- 
fered such  a  loss.  There  was  not  in  that 
case  any  basis  upon  which  to  determine 
Avhether  there  ever  would  be  any  profits,  or 
upon  which  to  estimate  them."  In  the  pres- 
ent case  the  offer  was  to  prove  facts  which 
would  have  shown  a  suflacient  basis  to  de- 
termine whether  there  would  be  profits,  and 
upon  which  they  might  be  estimated. 

For  the  errors  above  indicated,  the  judg- 
ment of  the  circuit  court  must  be  reversed, 
and  the  cause  will  be  remanded  for  a  new 
trial. 


BHEACH  OF  LANDLORD'S  COVENANTS. 


:jo: 


COHN  V.  NORTON. 

(18  Atl.  595,  57  Conn.  480.) 

Supreme   Court   of   Errors    of   Connecticut. 
Sept.  13,  1889. 

Appeal  from  court  of  common  pleas,  New 
Haven  county;  Dejiing,  Judge. 

Action  by  Louis  Cohn  against  Samuel  L. 
N'orton,  for  damages  for  breach  of  contract 
to  deliver  possession  of  premises  leased  to 
plaintiff.  Judgment  for  plaintiff.  Defend- 
ant appeals. 

G.  A.  Fay,  for  appellant.  R.  S.  Pickett, 
for  appellee. 

CATIPENTER,  J.  On  the  18tli  day  of  Au- 
gust,1885,  thedefendant  leased  to  the  plaintiff 
a  store  and  dwelling-house,  for  one  year  from 
the  1st  d;iy  of  Si-pte;nber,  with  the  privilege 
of  renewing  the  le;ise  for  three  years,  at  a 
monthly  rent  of  .$50,  payable  in  advance. 
One  month's  rent  was  paid.  The  defendant 
failed  to  put  the  plaintiff  in  possession.  It 
appears  that  when  the  lease  was  executed  the 
property  was  in  the  possession  of  one  Alex- 
ander, under  a  prior  lease,  with  the  right  to 
hold  the  same  until  February  1,  181)0.  He 
refused  to  surrender  the  possession.  In  an 
action  to  recover  damages  the  plaintiff 
claimed  to  recover  the  sura  of  $80,  amount 
paid  to  clerks  for  release  from  contracts,  and 
the  sum  of  .^58(3. 35,  amount  paid  merchants 
to  take  back  goods  bought,  and  for  deprecia- 
tion on  the  goods.  The  defendant  objected 
to  the  introduction  of  all  evidence  upon  either 
of  these  claims.  Thecourt  admitted  the  evi- 
dence, and  allowed  both  items  as  damages. 

Assuming  thiit  the  plaintiff  is  correct  in 
his  claim  that  these  were,  or  might  have  been, 
legitimate  items  of  damage,  still  we  think  the 
testimony  was  objectionable,  unless  it  further 
appeared  that  the  sums  paid  were  reasonable, 
and  that  the  obligation  to  pay  was  entered 
into  in  good  faith.  The  mere  fact  that  the 
plaintiff  paid  tliem  is  not  of  itself  suthcient 
to  establish  either  proposition;  and  't  does 
not  appear  that  there  was  any  other  evidence 
tending  to  establish  them,  or  either  of  them. 
If  the  clerks  employed  by  the  plaintiff  had 
sustained  no  damage,  or  damage  to  a  less 
amount,  or  if  the  plaintiff  was  under  no  legal 
obligation  to  pay,  then  the  payment  was  un- 
reasonable. The  same  is  true  of  the  money 
paid  to  the  merchants.  If  these  clerks  were 
liired  after  he  knew  of  the  lease  to  Alexander, 
it  can  hardly  be  claimed  that  the  plaintiff 
acted  in  good  faith.  How  that  was,  we  are 
not  told.  It  appears  that  he  had  full  knowl- 
edge of  that  lease  on  tiie  23d  of  August:  and 
it  is  consistent  with  every  fact  found  that  all 
the  clerks  were  subsequently  hired.  So,  too, 
with  respect  to  the  purchase  of  the  goods. 
Four  days  after  the  plaintiff  had  actual 
knowledge  that  Alexander  could  legally  re- 
tain the  possession,  August  27th,  he  wrote 
the  defendant  as  follows:  "As  1  am  now  sit- 
uated, I  am  on  the  fence,  it  being  high  time 
for  nie  to  buy  goods,  and  1  don't  know  what 
to  do  about  it."  On  the  same  day  he  doubt- 
LAW  I>AM.lM  K(1.— 20 


less  received  the  defendant's  letter  inform- 
ing him  that  the  prior  lease  had  a  year  and 
five  months  longer  to  run.  The  evidence  is 
strong,  if  not  conclusive,  that  he  purchased 
his  goods  after  that.  If  so,  in  no  event  has 
he  any  legal  or  moral  claim  on  thedefendant. 

But  the  great  question  is,  what  is  tlie  rule 
of  damages  in  cases  like  this  ?  Before  consid- 
ering that  question  we  will  briefly  notice  an- 
other claim  that  the  defendant  sets  up,  and 
that  is,  that  it  was  the  duty  of  the  plaintiff, 
at  his  own  expense,  to  take  measures  to  gain 
possession  of  the  property.  Whatever  may 
be  the  rule  when  a  stranger  wrongfully  takes 
and  liolds  possession,  the  principle  contended 
for  can  have  no  application  where  a  person 
holding  rightfully  under  the  lessor  retains  the 
possession.  Nor  are  we  prepared  to  sanction 
the  claim  that  in  this  case  the  defendant  is 
only  liable  for  nominal  damages.  We  can 
hardly  say  that  a  lamllord  who  knows,  or  who 
has  the  means  of  knowing,  that  liis  property 
is  incumbered  vvitii  an  outstanding  lease, 
which  may  prevent  his  giving  possession, 
acts  in  good  faith  in  leasing  unconditionally 
to  another.  We  come  back  then  to  the  ques- 
tion, what  is  the  rule  of  damages':*  In  Had- 
ley  V.  Baxendale,  9  Exch.  341,  the  rule  is  laid 
down  thus:  "Where  two  parties  have  made 
a  contract  which  one  of  them  has  broken,  the 
damages  which  the  other  party  ought  to  re- 
ceive in  respect  of  such  breach  of  contract 
should  be  either  such  as  may,  fairly  and  rea- 
sonably, be  considered  as  arising  naturally — 
that  is,  according  to  the  usual  course  of 
things — from  such  breach  of  contract  itself, 
or  such  as  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  both  par- 
ties at  the  time  they  made  the  contract,  as 
the  probable  result  of  the  breach  of  it." 

This  rule  has  been  criticised  somewhat,  as 
not  being  sutliciently  definite;  but  we  appre- 
hend that  any  ditliculty  of  that  sort  has  nec- 
essarily arisen  from  the  difliculty  in  applying 
the  rule  in  given  cases.  It  is  not  an  easy 
matter,  in  many  cases,  to  determine  whether 
a  given  result  is  the  natural  consequence  of 
a  breach  of  a  contract,  or  whether  it  arose 
from  a  matter  which  may  reasonably  be  sup- 
posed to  have  been  contemplated  when  the 
parties  entiered  into  the  contract.  Oftentimes 
it  is  a  question  on  which  men's  minds  may 
well  differ.  In  that  case  the  plaintiff  was  the 
owner  of  a  steam-mill.  He  sent  the  parts  of 
a  broken  shaft  by  the  defendant,  a  carrier,  to 
a  mechanic,  to  serve  as  a  model  for  making 
a  new  one.  The  carrier  did  not  deliver  the 
article  within  a  reasonable  time,  by  reason  of 
which  the  plaintiff's  mill  stood  still  several 
days.  In  an  action  to  recover  damages  the 
defendant  pleaded  by  paying  £25  into  court. 
The  case  went  to  trial,  and  the  plaintiff  had 
a  verdict  for  £25  more.  A  rule  to  show  cause 
was  argued,  and  the  court  promulgated  the 
rule  we  have  quoted.  In  that  case  it  was 
contended  that  the  loss  of  profits  was  the  di- 
rect and  natural  consequence  of  the  defend- 
ant's neglect.  Thecourt  did  not  accept  that 
view,  but  placed  its  decision  on  somewhat 


306 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


different  grounds.     Tlie  court  says:    "Xow, 
if  tlie  special  circumstances  under  which  the 
contract  was  actuallv  made  were  conimuiii- 
cated  by  the  plaintiff  to  the  delendant,  and 
thus  known  to  botli  parties,  the  damages  re- 
sulting from   the  breach   of  such  a  contract 
which   they   would    reasonably   contemplate 
WDuld  be  tlie  amount  of  injury  which  would 
ordinarily  follow  from  a  breach  of  contract 
under  these  special  circumstances,  so  known 
ami  communicated.     i3ut,on  tlie  other  hand, 
if  those  special  circumstances  vrere    wholly 
unknown  to  the  party  breaking  the  contract, 
he,  at  the  most,  could  only  be  supposed  to 
have  had  in  his  contemplation  the  amount  of 
injury  which  would  arise  generally,  and,  in 
the  great  multitude  of  cases,  not  affected  by 
any  special  circumstances  fromsuih  a  breach 
of  contract;  for,  had  the  special  circumstances 
been  known,  the  parties  might  have  especially 
provided  for  the  breach  of  contract  by  special 
terms  as  to  the  damages  in  that  case,  and  of 
this  advantage  it  would  be  very  unjust  to  de- 
prive them."    Thus  the  loss  was  attributed 
to  the  failure  of  the  plaintiff  to  inform  the 
defendant  of  the  special  circumstances,  by 
reason  of  which  he  contributed  to  the  loss; 
for,  if  the  defendant  had  been  fully  informed, 
it  may  be  assumed  that  there  would  have  been 
a  prompt  delivery,  and  consequently  no  un- 
necessary loss,  and  because  he  was  not  so  in- 
formed the  court  held  that  he  was  not  liable 
for  special  damages.     The  essence  of  tlie  rule 
seems  to  be  tliat  the  defendant  must,  in  some 
measure,  have  contemplated  the  injury  for 
which  damages  are  claimed.     If  it  was  the 
direct  and  natural  result  of  the  breach  of 
contract  itself,  he  did  contemplate  it;  but  if 
the  injury  did   not  How  naturally  from  the 
breach,  but  the  breach  combined  with  special 
circumstances  to  produce  it,  then  the  defend- 
ant did  not  contemplate  it,  and  consequently 
is  not  liable,  unless  he  had  knowledge  of  the 
special  circumstances.     There  may,  however, 
be  cases,  growing  out  of  the  present  methods 
of  business,  in  which  a  promise  may  be  im- 
plied, from  the  nature  of  the  transaction,  or 
the  character  of  the  business  in  which  the 
party  is  engaged,  to  be  prompt,  and  to  use 
the  utmost  diligence  in  the  performance  of 
the  duty  undertaken.     In  such  cases  the  law 
will  not  require  the  party  to  be  specially  in- 
formed, but  will  deem  him  to  have  contem- 
plated the  importance  of  the  business,  and 
hold  him  responsible  accordingly. 

Apply  these  principles  to  this  case.  The 
store  was  hired  for  a  clothing  store.  That 
seems  to  be  all  that  the  defendant  knew 
about  it.  He  did  not  request  the  plaintiff  to 
hire  clerks  and  purchase  goods,  nor  was  he 
advised  that  the  plaintiff  would  do  so.  AVhile 
he  may  have  supposed  that  the  plaintiff 
would  make  suitable  preparations  to  oc- 
cupy the  store,  yet  he  could  not  know  what 
preparations  were  necessary.  He  may  have 
needed  no  clerks,  or  they  may  have  been  pre- 
viously engaged,  and  the  necessary  goods 
may  have  been  then  in  his  possession.  As  a 
matter  of  law,  it  cannot  be  said  that  the  de- 


fendant contemplated  that  the  j^laintiff  would 
hire  clerks  and  purchase  goods  under  such 
circumstances  as  to  incur  heavy  liabilities  in 
case  of  failure  for  any  cause.     In  no  profier 
sense,  therefore,  was  the  defendant  a  party 
to  those  arrangements,  had  no  interest  there- 
in, and    had    no   right   to   interfere;   conse- 
quently he  cannot  be  held  responsible.  Again, 
if   these  liabilities    were  incurred  after  the 
plaintiff  knew  that  it  was  doubtful  whether 
he   could   have   the   store,  as  they  probably 
were,  then,  as  suggested  in  a  former  part  of 
this  opinion,  they  were  incurred  in  bad  faith, 
and  he  assumed  the  entire  risk.     The  En- 
glish rule,  then,  as  we  understand  it,  will  not 
justify  the  measure  of  damages  applied   by 
the   court   below.     The   rule   we  have  been 
considering  prevails  generally  in  tliis  country. 
Closely  allied  to  it  is  another  principle,  which 
has  some  application  to  this  case,  and  that  is. 
that  profits  which  are  in  iheir  nature  doubt- 
ful or  uncertain  cannot  be  recovered  as  dam- 
ages in  such  cases.     But  this  principle  does 
not  exclude  profits  as  such,  but  only  those  of 
a  contingent  nature.     If  they  are  definite  and 
certain,  and  are  lost  by  reason  of  the  defend- 
ant's breach  of  his  contract,  they  are  in  some 
cases  recoverable.     An  instance  of  this  is  the 
case  of  Booth   v.  RoUing-Mill  Co.,  60  N.  Y. 
487.     The  plaintiff  had  contracted  to  deliver 
to  a  railroad  company  400  steel-capped  rails 
at  a  given  price.     The   defendant   engaged 
with  the  plaintiff  to  manufacture  thein,  but 
failed  to  do  so.     The  plaintiff  was  allowed  to 
recover  the  profits  he  would  have  made  liad 
he  been  able  to  deliver  the  rails.     If  a  loss  of 
profits  may  thus  be  compensated,  we  see  no 
reason   why  a  direct  loss  of  money  may  not 
be  compensated.     In  eitlier  event,  liowever, 
the  loss  must  be  certain,  not  only  as  to  its 
nature  and  extent,  but  also  as  to  the  cause 
which  produced  it,  and  must  be  capable  of 
being   definitely   ascertained.     In   GriiRn  v. 
Colver,  16  N.  Y.  489,  the  rule  is  thus  stated: 
"The  broad,  general  rule   in  such  cases  is 
that  the  party  injured  is  entitled  to  recover 
all  his  damages,  including  gains  prevented  as 
well  as  losses  sustained,  and  this  rule  is  sub- 
ject to   but  two   conditions:    The  damages 
must  be  such  as  may  fairly  be  supposed  to 
have  entered  into  the  contemplation  of  the 
parties  when  they  made  the  contract, — that 
is,  must  be  such  as  might  naturally  be  ex- 
pected to  follow  its  violation;  and  they  must 
be  certain,  both  in  their  nature  and  in  re- 
spect to  the  cause  from  which  they  proceed." 
Here  we  may  concede  that  the  loss  sustained 
was  sulhciently  definite  and  certain  as  to  the 
amount,  but   not   so   as   to   the  cause  from 
which  it  proceeded.   As  we  have  already  seen, 
it  is  not  probable  that  the  violation  of  the 
contract  caused  these  losses ;  but,  on  the  other 
hand,   the  plaintiff  himself  needlessly  sub- 
jected himself  to  them. 

In  an  Illinois  case  cited  by  the  plaintiff, 
(Green  v.  Williams.  45  111.  206,)  it  was  held 
that  necessary  losses  sustained  might  be  re- 
covered. The  plaintiff's  case  will  hardly 
stand  that  test.     The  failure  is  twofold,— in 


BREACH  OF  LANDLORD'S  COVENANTS. 


307 


respect  to  the  necessity  for  hiring  clerks,  and 
purchasing  goods,  in  the  first  instance,  and 
also  in  respect  to  the  payment  of  the  suras 
paid.  There  is  no  finding,  and  the  facts  do 
not  sufficiently  indicate,  that  there  was  any 
necessity  for  eitlier. 

Thus  far  we  have  assumed  that  the  dam- 
ages recoverable  in  this  case  are  the  same  as 
in  ordinary  cases  of  breaches  of  contract. 
The  defendant,  however,  contends  that  the 
rule  in  actions  on  covenants  in  leases,  ex- 
press or  implied,  is  that,  where  the  plaintiff 
has  paid  no  rent  or  other  expense,  only 
nominal  damages  can  be  recovered.  Such  a 
rule  once  prevailed.  It  was  adopted  in  anal- 
ogy to  actions  on  covenants  in  deeds  of  real 
estate,  and  it  now  prevails  to  a  limited  ex- 
tent in  the  state  of  New  York.  Conger  v. 
Weaver,  20  N.  Y.  140.  In  that  case  Denio, 
J.,  not  regarding  the  rule  with  favor,  with 
apparent  reluctance  considered  that  it  was 
too  firmly  established  in  that  state  to  be  dis- 
turbed. In  Mack  v.  Patchin,  42  N.  Y.  167, 
Smith,  J.,  says:  "But  this  rule  has  not  been 
very  satisfactory  to  tlie  courts  in  this  country, 
and  it  has  been  relaxed  or  modified  more 
or  less,  to  meet  the  injustice  done  to  les- 
sees in  particular  cases."  In  Pumpelly  v. 
Phelps,  40  N.  Y.  59,  it  is  declared  tiiat  the 
rule  should   not  be  extended,    but    limited 


strictly  to  those  cases  coming  wholly  and  ex- 
actly witiiin  it.  In  both  tliose  Ccises  the  cir- 
cumstances are  enumerated  which  will  take 
cases  out  of  the  operation  of  the  rule.  They 
are  so  numerous  as  to  well  nigh  abrogate  tlie 
rule  itself.  In  England  the  rule  has  ueen  re- 
pudiated, and  such  actions  are  placed  upon 
the  same  footing  with  otlier  actions  on  con- 
tracts. Williams  v.  Burrell,  1  Man.,  G.  &  S. 
402;  Lock  v.  Furze,  19  C.  B.  (N.  S.)  96. 
In  tiiis  state  the  rule  has  not  been  adopteil, 
and  we  are  not  disposed  to  adopt  it.  We 
think  it  better  to  discard  tlie  rule,  so  as  to  be 
in  a  position  to  determine  all  such  cases  upon 
the  general  principles  applicable  to  other  con- 
tracts. In  that  way  we  think  we  siiall  be 
the  better  prepared  to  do  justice  in  each  case 
as  it  arises. 

We  suppose  the  correct  rule  to  be  that  the 
plaintiff  is  entitled  to  recover  the  rent  pa  d, 
and  the  difference  between  the  rent  agreed 
to  be  paid  and  the  value  of  the  term,  together 
with  such  special  damages  as  the  circum- 
stances may  show  him  to  be  entitled  to. 
Trull  V.  Granger,  8  N.  Y.  115.  The  theory 
upon  which  the  court  below  assessed  dam- 
ages being  inconsistent  with  these  prin- 
ciples, the  judgment  must  be  reveis"d,and  a 
new  trial  ordered.  The  other  juugds  con- 
curred. 


308 


BREACH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


KNOWLES  V.   STEELE. 
(61  N.  W.  557.) 
Supreme  Court  of  Minnesota,    Dec.  21,   1S94. 
Appeal  from  district  court,  Hennepin  coun- 
ty;  Henry  G.  Hiclis,  Judge. 

Action  by  Alfred  H.  Knowles  against 
Franklin  Steele,  Jr.,  for  damages  for  breach 
of  contract.  Judgment  was  rendered  for  de- 
fendant, and  plaintiff  appeals.    Affirmed. 

George  R.  Robinson,  for  appellant.  Kit- 
chel,  Cohen  &  Shaw,  for  respondent 

MITCHELL,  J.  The  following  condensed 
statement  of  the  facts  will  be  sufficient  for 
the  purposes  of  this  appeal:  In  ISSl,  the 
defendant,  being  the  owner  of  the  premises 
described  in  the  complaint,  executed  a  lease 
(in  which  his  wife  joined)  to  plaintiff  for 
the  term  of  10  years  at  an  agreed  annual 
rent.  This  lease  contained  a  covenant  that 
if  the  lessee  should  desire  to  continue  the 
lettse  for  another  10  years  he  should  have 
the  privilege  of  doing  so  in  the  manner  fol- 
lowing. Not  less  than  three  months  before 
the  expiration  of  the  original  term  the  lessee 
should  give  to  the  lessors  notice  in  writing 
of  his  election  to  continue  the  lease  for  an  ad- 
ditional term,  and  in  such  notice  name  and 
appoint  an  appraiser  on  his  part.  There- 
upon the  lessors  should  appoint  an  appraiser 
on  their  part,  and  notify  the  lessee  of  such 
appointment.  The  two  appraisers  thus  ap- 
pointed were  to  appoint  a  third,  and  the 
three  so  chosen  were  to  apiiraise  the  leased 
premises  at  their  then  fair  market  value, 
•'and  thereupon,  without  any  further  act, 
this  lease  shall  thereupon  be  extended  for 
the  further  term  of  ten  years,  upon  the 
same  terms  and  conditions  as  before,  except 
that  the  annual  rent  for  such  second  term 
shall  be  such  sum  as  is  equal  to  six  per 
centum  of  such  appraised  valuation."  In 
18;>1  plaintiff  seasonably  gave  defendant 
written  notice  of  his  ekclion  to  continue  to 
lease  for  a  second  term,  and  in  such  notice 
nominated  an  appraiser  on  his  part  to  ap- 
praise the  property  for  the  pm'pose  of  Uxing 
the  amount  of  the  rent  for  the  additional 
term.  On  receipt  of  this  notice  defendant 
sent  plaintiff  a  written  communication,  by 
which,  in  order  to  avoid  the  necessity  of  ap- 
pointing appraisers,  he  proposed  to  lix  the 
rent  for  the  extended  term  at  6  per  cent,  on 
the  then  present  assessed  valuation  of  the 
pi-operty,  $31,000.  Immediately  on  receipt 
(if  this  proposition  the  plaintiff  wrote  to  de- 
fendant, notifying  him  of  his  accrpiance  of 
it.  The  fact  was,  although  unknown  to 
plaintiff",  that  soon  after  the  execution  of  the 
lease  In  1881  the  defendant  had  conveyed 
the  premises,  through  the  medium  of  a  third 
party,  to  his  wife,  from  whom  he  had  no  au- 
thority to  make  or  accept  the  proposition  re- 
ferred to,  and  shortly  afterwards  she  wrote 
plaintiff,  notifying  him  that  she  declined  to 
be  bound  by  the  act  of  her  husband,  and  sug- 


gesting that,  if  they  could  not  agree  on  thu 
amount  of  the  rent,  they  should  resort  to  an 
appraisal  of  the  property  in  accordance  with 
the  terms  of  the  lease.  Plaintiff  having  re- 
fused to  accede  to  the  proposition,  Mrs. 
Steele  brought  an  action  against  him  to  re- 
cover possession  of  the  property,  in  which 
the  com't  decided  that  the  notice  served  on 
her  husbaud  was  sufficient  to  bind  Mrs. 
Steele,  but  that  she  was  not  bound  by  tlie 
proposition  made  by  him  fixing  the  rent, 
and  in  accordance  with  the  stipulation  of  the 
parties  to  the  action  the  court  gave  Mrs. 
Steele  further  time  in  which  to  appoint  an 
appraiser  on  her  part,  which  she  did.  The 
two  thus  appointed  by  her  and  the  present 
plaintiff,  respectively,  selected  a  third,  and 
the  three  appraised  the  market  value  of  the 
premises  at  $35,000,  on  which  basis  the  rent 
for  the  second  term  was  fixed  at  $2,100  per 
annum,  at  which  rate  the  plaintiff  has  since 
paid,  whereas  the  rent,  according  to  the 
proposition  of  the  defendant  and  accepted 
by  plaintiff,  would  have  been  only  $1,914  per 
annum.  This  action  was  brought  to  recover 
damages  for  defendant's  breach  of  his  con- 
tract fixing  the  rent  on  the  basis  of  the  as- 
sessed value  of  the  property.  No  evidence  was 
introduced  as  to  the  actual  rental  value  of  the 
premises,  and,  the  ejectment  suit  lietween 
plaintiff  and  Mrs.  Steele  being  res  inter  alios 
acta,  nothing  done  or  determined  in  that  ac- 
tion is  evidence  against  the  defendant  on 
that  question. 

The  plaintiff  contends  that  this  is  in  the 
nature  of  an  action  for  the  breach  of  the 
covenant  in  the  lease  for  the  quiet  enjoyment 
of  the  leased  premises;  that  plaintiff  had  a 
right  to  purchase  his  right  of  possession 
from  the  txue  owner,  and  that  his  damages 
a'-e  what  it  cost  him  to  secure  this  right, 
over  and  above  the  rent  agreed  on  between 
him  and  defendant.  The  rule  as  to  the 
measure  of  damages  attempted  to  be  in- 
voked has  no  application  to  the  case.  Plain- 
tiff's quiet  enjoyment  imder  the  lease  has 
not  been  disturbed.  He  has  secured  a  sec- 
ond term  on  the  exact  terms  upon  which  he 
was  entitled  to  it  under  the  terms  of  the 
lease.  What  he  complains  of  is  that,  if  de- 
fendant had  been  able  to  perform  and  had 
performed  a  certain  other  contract,  he  would 
have  obtained  the  extension  on  better  terius 
than  he  was  entitled  to  under  the  original 
lease.  He  was  not  compelled  to  take  a 
second  term  at  all,  still  less  to  take  it  at  a 
rent  greater  than  the  actual  rental  value  of 
the  premises.  Therefore  the  measure  of  his 
damages,  if  he  is  entitled  to  any,  is  the  loss 
of  his  bargain,  viz.  the  difference  between 
the  rent  agreed  in  the  accepted  proposition  of 
the  defendant  and  the  actual  market  rental 
value  of  the  premises  at  the  time  this  agree- 
ment was  made.  Therefore,  assuming  that 
the  proposition  of  the  defendant  and  the  ac- 
ceptance of  it  by  plaintiff  constituted  a  bind- 
ing contract,  still  the  plaintiff  was  at  most. 


BREACH  OP  LANDLORD'S  COVENANTS. 


309 


only  entitled,  under  the  evidence,  to  nominal 
damages;  and  a  new  trial  will  not  be  grant- 
ed for  a  failure  to  assess  nominal  damages 
where  no  question  of  permanent  right  is  in- 
volved. Harris  v.  Kerr,  37  Minn.  537,  35  N. 
W.  379;   HiU.  New  Trials,  p.  572.     This  ren- 


ders it  unnecessary  to  consider  any  of  the 
other  questions  discussed  by  counsel.  Judg- 
ment affirmed. 

GILFILLAN,  C.  J.,  absent,  on  account  of 
sickness;   took  no  part 


310 


BKEAOH  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


MYERS  V.  BURNS. 

(35  N.  Y.  269.) 

Court  of  Appeals  of  New  York.     1866. 

Jobu  H.  Reynolds,  for,  appellant.  James 
Emott,  for  respondent 

HUNT,  J.  This  is  an  action  for  rent  on  a 
lease  dated  May  28.  1856,  brought  by  the 
grantee  of  the  reversion  against  the  assignee 
of  the  term.  The  present  defendant  went 
into  possession  of  the  premises  September 
20,  1856. 

The  defense  is  a  counter-claim,  under  a 
covenant  of  the  landlord  to  keep  the  prem- 
ises in  repair.  There  is  also  connected  with 
the  covenant  to  repair,  an  agreement  that 
if  the  premises  were  damaged  by  fire,  so  as 
to  be  unfit  for  a  first-class  hotel,  the  rent 
should  abate.  The  counter-claim  set  up  in 
the  answer  is,  first,  ■  for  $908,  expended  by 
the  defendant  in  repairs,  and  second,  for 
$700  damages  occasioned  by  the  loss  of  the 
use  of  four  rooms,  alleged  to  be  untenant- 
able for  the  want  of  repairs. 

The  rent  due  was  $1,000.  with  interest  from 
August  1,  1858. 

The  jui-y  found  specially  $752.57,  amount 
of  repairs  made  by  the  defendant,  and  $300 
damages  for  the  loss  of  the  use  of  the  rooms. 
These  amounts  left  a  balance  of  .$9.45  due 
to  the  defendant,  for  which  he  had  a  verdict. 

The  most  important  questions  in  the  case 
were  questions  of  fact,  which  were  carefully 
and  correctly  submitted  to  the  jury  upon  the 
trial,  and  in  relation  to  which  their  decision 
is  final. 

A  (luestjou  arose  upon  the  charge  for  paint- 
ing, on  which  an  exception  was  taken  by 
the  plaintiff.  Certain  portions  of  the  wood- 
work of  the  hotel  were  repainted  by  the  de- 
fendant with  zinc  paint,  which  was  about 
flfteeen  per  cent,  more  expensive  than  com- 
mon lead  paint,  which  was  the  original  style 
of  painting,  and  was  more  durable  and  more 
ornamental.  The  court  charged,  that  "the 
defendant  was  entitled  to  recover  the  full 
expense  of  the  zinc  paint,  although  it  was 
more  expensive  than  the  description  of  paint 
originally  employed,  it  appearing  that  it  was 
more  desirable  and  a  better  material  than 
white  lead."  This  charge  was  correct.  The 
plaintiff  had  the  option  of  making  these  re- 
pairs bj"^  his  own  mechanics,  and  with  such 
suitiible  materials  as  he  should  select.  His 
omission  to  do  so  gave  the  defendant  the 
right  to  make  them  by  his  mechanics,  and 
witli  such  suitable  materials  as  he  should 
select.  He  was  bound  to  be  reasonable  and 
judicious  in  his  repairs;  but  he  was  not  com- 
pelled to  select  pi-ecisely  the  same  kind  of 
paper  or  paint,  or  to  be  precise  that  the  ex- 
pense was  not  a  farthing  greater  than  had 
before  been  expended  upon  the  same  spot. 
He  was  at  liberty  to  repair  according  to  the 
modern  style,  and  adopt  modern  improve- 
ments.    The  testimony  showed  that  the  re- 


pair for  the  purpose  in  question  was  a  useful 
one,  that  it  was  necessary,  and  that  it  was  not 
extravagant.  The  charge  of  the  judge,  and 
the  finding  of  the  jury  under  it,  are  unex- 
ceptionable. 

The  plaintiff  also  objects  to  the  allowance 
of  damages,  and  to  the  rule  of  damages  adopt- 
ed, on  account  of  the  loss  of  the  use  of  cer- 
tain rooms  through  a  defect  in  the  flues  of 
the  chimney.  It  appears  that  during  some 
portion  of  the  time,  four  rooms  fronting  on 
Hicks  street  were  of  no  use  to  the  defendant. 
When  fires  were  kindled  in  them  the  flues 
would  not  draw,  but  the  gas  and  smoke  is- 
sued out  into  the  rooms,  rendering  them  un- 
inhabitable. The  court  charged  the  jury 
"that  the  defendant  was  entitled  to  recover 
of  the  plaintiff  as  a  counter-claim,  the  dam- 
ages which  he,  the  defendant,  had  sustained 
by  reason  of  the  loss  of  the  use  of  the  rooms, 
so  far  as  caused  by  a  defect  in  the  flues  of 
the  chimney,  without  reference  to  the  cause 
of  the  defect,  and  that  the  fair  value  of  the 
use  of  such  I'ooms,  for  the  time  they  were 
unoccupied  by  reason  of  such  defect,  was 
the  amount  to  which  the  defendant  was  en- 
titled." This  charge  involved  two  proposi- 
tions: First,  tliat  the  plaintiff  was  responsi- 
ble, although  the  defect  in  the  flue  was  in  its 
oi'iginal  constriiction,  and  had  not  occurred 
through  dilapidation  or  decay;  and  secondly, 
that  the  loss  of  the  use  of  the  rooms  af- 
forded the  rule  of  compensation,  instead  of 
the  expense  of  actual  repair  by  the  defend- 
ant. The  exception  was  to  the  entire  charge 
as  stated.  If  either  of  the  propositions  was 
correct,  the  exception  was  too  general,  and 
is  unavailing.  I  think  the  charge  however 
was  correct  in  both  aspects. 

On  the  first  point.  The  plaintiff's  grantor 
leased  the  premises  in  question  as  a  "first 
class  hotel."  and  he  covenanted  "to  keep  the 
said  hotel  and  premises  in  good  necessary 
repair  during  the  term,  at  his  ow^n  proper 
charge  and  expense."  Are  the  rooms  of  a 
hotel  in  good  repair  for  such  a  purpose,  when 
they  are  so  smoky  that  they  cannot  be  oc- 
cupied; or  when  the  more  offensive  coal  gas 
issues  at  all  times  from  the  lighted  grate  and 
fills  the  room  with  its  noxious  substance? 
No  tenant  or  occupant  can  inhabit  such  rooms 
when  a  fire  is  needed,  and  fires  are  needed 
in  the  city  of  Brooklyn  during  three-fourths 
of  the  year.  A  house  or  a  room  that  cannot 
be  comfortably  and  safely  inhabited  is  not  in 
good  repair.  A  room  in  a  first-class  hotel, 
where  women  and  children  usually  form 
portions  of  the  family,  cannot  be  tenantable 
or  in  good  repair  unless  a  fire  can  be  had 
when  desired.  Nor  is  it  important,  either 
to  the  tenant  or  landlord,  whether  such  de- 
fects in  the  flues  are  caused  by  dilapidation 
or  arise  from  original  misconstruction.  Th(^ 
rooms  are  equally  untenantable  and  uninhab- 
itable; they  are  equally  out  of  repair,  from 
which  cause  soever  the  difficulty  may  have 
arisen.  The  grates  are  in  their  places,  and 
the  flues  are  in  the  walls.     No   new   strm- 


BUKACII  UF  LANDLORD'S  COVENANTS. 


311 


lures  of  an  original  character  are  required. 
It  is  only  required  that  those  iu  the  building 
should  be  made  to  perforin  their  proper  duty. 
The  party  agrees  to  "lieep"  in  repair,  and 
if,  to  keep  in  repair,  it  is  necessary  that  the 
roooms  should  first  be  put  in  repair,  the  les- 
sor is  bound  to  perform  that  duty.  Mayne, 
Dam.  133,  92  Law  Lib.;  Payne  v.  Haiue,  16 
Mees.  &  W.  541.  There  is  no  covenant  that 
the  rooms  be  kept  in  their  then  condition  of 
repair,  and  no  exception  of  natural  wear  and 
natural  decay;  but  good  repair  and  good 
condition  at  all  times  is  the  fair  intent  of  the 
agreement.  The  requirements  of  a  first-class 
hotel  in  Brooklyn  demand  all  the  comforts 
and  conveniences,  and  many  of  the  luxuries 
of  civilized  life.  Different  standards  of  com- 
fort and  civilization  prevail  in  different  parts 
of  the  Avorld.  The  location  in  question  was 
that  of  the  second  city  of  the  state,  immedi- 
ately adjoining  the  city  of  New  York,  and 
the  general  standard  of  that  latitude  must 
be  assumed.  A  hotel  of  the  first  class  In 
such  a  location  without  the  means  of  heat- 
ing its  rooms  would  not  be  tolerated.  It 
would  not  indeed  be  a  hotel  of  that  character. 
If  the  rooms  had  been  rendered  untenantable, 
by  water  from  the  roof,  would  it  have  been 
an  answer  to  the  request  to  repair,  that  the 
leak  existed  when  the  lease  was  entered 
into?  If  the  ceilings  had  fallen,  or  the  rooms 
were  filthy  from  dirt  and  want  of  paint,  it 
certainly  would  have  been  no  answer,  that 
they  were  in  that  condition  when  the  lease 
was  made.  The  condition  of  the  covenant, 
to  keep  in  repair,  as  already  stated,  can  only 
be  performed  by  first  putting  in  repair,  when 
that  is  necessary.  Beach  v.  Grain,  2  N.  Y. 
86,  and  cases  supra. 

The  second  proposition  involved  the  extent 
of  the  damages;  the  plaintiff  claiming  that 
the  defendant  was  entitled  to  no  larger  sum 
than  it  would  have  cost  if  the  defendant  had 
himself  repaired  the  defect,  and  the  defend- 
ant claiming  that  he  was  entitled  to  recover 
as  damages  the  loss  that  he  actually  sus- 
tained, from  being  deprived  of  the  use  of  the 
rooms. 


The  defendant  had  two  different  remedies, 
of  either  of  which  he  could  have  availed  him- 
self, in  the  event  of  the  plaintiff's  failure 
to  repair,  after  due  notice.  He  could  have 
made  the  repair  himself,  and  have  called 
upon  the  plaintitf  to  refund  the  expense,  as 
he  actually  did,  in  tiic  case  of  the  painting; 
or  he  could  have  called  upon  the  plaintiff  to 
take  the  ordinary  responsibility  of  a  party 
failing  to  perform  his  contract,  to  wit,  to  pay 
the  damages  caused  by  such  failure,  as  he  did 
in  regard  to  the  item  in  question.  In  the 
first  case,  the  rule  confines  the  damages  to 
the  actual  expense,  if  no  special  damage  is 
shown;  but  in  the  other,  the  cost  of  the  re- 
pair is  not  an  element  in  the  case.  It  is  as 
if  there  was  no  such  right  to  repair  on  the 
part  of  the  lessee,  but  the  claim  rested  solely 
in  damages.  In  Griflin  v.  Colver,  16  N.  Y. 
489,  it  was  held  that  in  the  case  of  a  faibu-e 
to  deliver  a  steam  engine  at  the  time  con- 
tracted, the  party  injured  could  recover  all 
his  damages,  including  gains  prevented  as 
well  as  losses  sustained,  provided  they  were 
certain,  and  such  as  might  naturally  be  ex- 
pected to  follow  the  breach.  According  to 
the  reasoning  of  the  learned  judge  iu  that 
case,  the  damages  for  tne  loss  of  the  use  of 
the  rooms  as  here  claimed,  are  both  certain 
and  proximate.  See,  also,  Freeman  v.  Chito, 
3  Barb.  424,  as  explained  by  Judge  Selden; 
and  Trull  v.  Granger,  8  N.  Y.  115;  and  Doe 
V.  Rowlands,  9  Car.  &  P.  734,  38  E.  C.  L.  42."). 

The  judgment  should  be  affirmed.  All 
concur,  except  DA  VIES,  C.  J.,  and  MOR- 
GAN, J.,  dissenting. 

NOTE.  Iu  Cook  V.  Souk-.  .^>6  N.  Y.  420.  the 
court,  referring  to  the  rule  laid  down  in  Myers 
V.  Burns,  supra,  said,  per  (trover,  .J.:  "There 
may  be  exceptions  to  this  rul«'.  In  cases  wliere 
the  requisite  repairs  are  tiitling,  and  the  dam- 
ages by  not  making  them  are  large,  I  think  it  is 
the  duty  of  tlie  tenant  to  make  them,  and 
charge  the  landlord  with  the  cost.  Miller  v.  Mar- 
iner's Church,  7  Greenl.  51;  Loker  v.  Damon, 
17  Pick.  284.  The  tenant,  after  giving  reason- 
able notice  and  opportunity'  to  the  landlord  to 
make  the  repairs,  if  he  neglects,  may  himself 
make  them,  and  charge  the  landlord  with  the 
expense." 


312 


BTtEACIi  OF  CONTRACTS  RESPECTING  REAL  ESTATE. 


FISHER  V.  GOEBEL. 

(40  Mo.  475.) 

Suini'iiic  Court  of  Missouri.    March  Term.  1807. 

Error  to  St.  Louis  court  of  common  pleas. 

Glovor    &    Shepley,    for    plaintiff    in    error. 

Krnni,    Decker    &    Krum,    for    defendant    in 


H(JLMKS,  J.  The  plaintiff  had  lea.sed  from 
the  defendant  the  premises  called  the  "Flora 
Garden."  situated  on  the  corner  of  Seventh 
street  ;ind  Geyer  avenue,  in  1855.  There  was 
a  cut  some  15  or  20  feet  deep  on  Geyer  ave- 
nue, and  the  lessor  covenanted  in  the  lease 
that  he  would  build  at  his  own  expense  a  rock 
wall  and  fence  on  that  side;  and  the  lessee 
covenanted  to  keep  the  leased  property  in  a 
state  of  repair.  Some  two  years  after  this 
wall  was  erected,  it  fell  down  by  parts  by 
the  action  of  the  elements.  The  defendant 
was  called  upon  to  rebuild  it,  but  before  this 
Avas  done  the  plaintiff  abandoned  the  prem- 
ises and  surrendered  his  lease. 

The  plaintiff  proceeds  on  the  assumption  that 
the  covenant  of  the  lessor  had  been  broken  by 
the  falling  down  of  this  wall,  and  that  it  be- 
longed to  the  lessor  and  not  to  himself  to  re- 
l)uild  it.  The  case  appears  to  have  been  tried 
on  this  theory,  and  the  principal  matters  sub- 
mitted for  decision  concern  the  instructions  of 
the  court  on  the  measure  of  damages. 

The  jury  were  instructed  for  the  plaintiff 
upon  the  basis  that  the  proper  measure  of 
damages  was  the  difference  between  the  rent 
and  value  of  the  leasehold  premises  with  a 
good  and  permanent  wall  standing,  and  their 
value  in  the  condition  in  which  they  were  left 
without  such  wall. 

The  defendant's  instructions  were  predicated 
upon  the  rule  that  only  the  actual  damages 
resulting  directly  from  the  defendant's  default 
in  relation  to  the  stone  wall,  to  be  measured 
by  what  it  would  cost  to  rebuild  the  wall,  to- 
gether with  any  loss  th.at  may  have  been  sus- 
tained as  the  direct  and  immediate  conse- 
quence of  the  insufficiency  of  the  wall  and 
the  breach  of  the  covenant,  could  be  recovered. 

The  jury  found  a  verdict  for  the  plaintiff 
for  .$4,750  damages,  and  upon  a  remittitur  of 
$2,375  the  defendant's  motion  for  a  new 
trial  was  overruled,  and  judgment  rendered 
for  the  balance. 

T'nder  these  covenants,  it  might  admit  of 
serious  question  whether  the  plaintiff,  after 
he  had  accepted  the  wall  without  remon- 
strance, and  safely  occupied  the  premises  for 
two  years,  was  not  bound  under  the  covenant 
for  repairs  to  rebuild  the  wall  himself,  or  at 
least  to  put  and  keep  it  in  a  state  of  repair, 
charging  the  defendant  with  ckmages  only  for 
the  original  deficiency  of  structure.     But   it 


appears  to  have  been  left  to  the  jury  under 
the  instructions  to  say  whether  the  covenant 
for  the  building  of  a  wall  had  been  complied 
with,  and  whether  the  plaintiff  had  sustained 
damage  in  consequence  of  a  breach  thereof; 
and  the  case  will  be  considered  here  only  on 
the  matter  of  the  damages. 

Upon  the  facts  of  the  case,  we  think  the 
instruction  given  for  the  plaintiff  allowed  a 
larger  latitude  and  measure  of  damages  than 
the  justice  or  the  law  of  the  case  will  warrant, 
and  that  the  rule  given  in  the  defendant's  in- 
structions should  have  been  adopted. 

In  Vivian  v.  Champion,  2  Ld.  Raym.  1125, 
it  Avas  said  that  the  proper  measure  of  dam- 
ages in  a  breach  of  such  covenants  was  what 
it  would  cost  to  put  the  premises  in  repair. 
This  rule  appears  to  have  been  sliglitly  modi- 
fied in  some  modern  cases  on  covenants  by 
tenants  for  repairs,  but,  as  we  conceive,  not 
to  the  extent  implied  in  this  instruction  for 
the  plaintiff.  Smith  v.  Peat.  9  Excli.  165; 
Penley  v.  Watts,  7  Mees.  &  W.  (!01;  City  of 
Worcester  v.  Rowlands,  9  Car.  &  P.  739; 
Walker  v.  Swayzee,  3  Abb.  Prac.  13(3.  It  has 
lieen  said  to  cover  such  damages  as  are  direct 
and  immediate,  but  not  remote,  speculative  or 
contingent  damages,  or  such  as  might  have 
been  avoided  by  tlie  other  party.  Loker  v. 
Damon.  17  Pick.  288.  It  has  been  allowed  to 
include  sucli  losses  in  addition  to  tlie  actual 
cost  of  repair  as  were  necessarily  sustained 
during  the  periods  required  for  making  re- 
pairs, and  some  compensation  for  any  loss  of 
the  use  of  the  premises  whilst  they  were  un- 
dergoing repairs.  Middlekauff  v.  Smith.  1 
Md.  327.  But  we  find  no  satisfactory  au- 
thority for  the  position  that  the  tenant  in 
such  case  may  wholly  neglect  to  make  the 
necessary  repairs  himself,  allow  his  leasehold 
to  depreciate  in  value,  or  his  business  to  be 
broken  up  and  abandon  his  lease,  and  then 
claim  for  his  damages  the  whole  loss  so  in- 
curred. Tlie  greater  part  of  such  damages  as 
these  might  have  been  avoided,  and  are  to  be 
attributed  to  his  own  fault;  and  for  that  he 
must  be  content  to  bear  the  loss  himself. 
Thompson  v.  Shattuck,  2  Mete.  (Mass.)  (515. 
As  a  general  rule,  we  think  it  may  be  said 
that  the  recovery  must  be  confined  to  tlie  ac- 
tual damages,  which  are  the  direct,  immedi- 
ate, or  proximate,  and  unavoidable  conse- 
quence of  the  breach  of  tlie  covenant.  Sedg. 
Meas.  Dam.  195-199. 

The  evidence  shows  that  this  wall  might 
liave  been  rebuilt  at  a  cost  of  some  six  or 
eight  hundred  dollars,  and  we  are  inclined  to 
tliink  that  the  plaintiff  has  recovered  a  larger 
amount  than  he  was  justly  entitled  to  claim, 
notwithstanding  the  remittitur. 

For  these  reasons  the  judgment  will  be  re- 
versed and  the  cause  remanded.  The  other 
judges  concur. 


BREACH  OF  TENANT'S  COVENANTS. 


313 


WATRISS  V.   FIRST  NAT.   BANK  OF 
CAJNIBRIDGE. 

(130  Mass.  343.) 

Supreme  Judicial  Court  of  Massachusetts.    Mid- 
dlesex.    Feb.  21,   1881. 

Action  by  Sarah  W.  Watriss  against  the 
First  National  Bank  of  Cambridge.  Defend- 
ant was  plaintiffs  tenant,  and,  at  the  termi- 
nation of  its  lease,  removed  fixtures  from  tlie 
leased  premises.  This  action  is  for  breach  of 
the  covenant  to  surrender  the  premises  in 
,good  condition.     Judgment  for  plaintiff. 

S.  H.  Dudley,  for  plaintift".  J.  W.  Ham- 
mond, for  defendant. 

GRAY,  C.  J.  As  a  general  rule,  the  meas- 
ure of  damages  for  the  breach  of  a  lessee's 
covenant  to  keep  in  repair,  and  to  surrender 
the  demised  premises  at  the  end  of  the  term 
in  as  good  order  and  condition  as  they  are  in 
-at  the  beginning  of  it.  is  the  sum  it  would 
cost  to  repair  the  premises  and  put  them  in 
the  condition  they  ought  to  be  in.  In  the 
time  of  Lord  Holt,  this  was  the  rule  even  in 
an  action  brought  before  the  expiration  of  the 
lease.  Shortridge  v.  Lamplugh,  2  Ld.  Raym. 
798,  803.  7  Mod.  71,  77;  A'ivian  v.  Champion, 
2  Ld.  Raym.  1125.  1  Salk.  141.  In  Vivian  v. 
Champion,  that  great  judge  said:  "In  these 
actions  there  ought  to  be  very  good  damages; 
and  it  has  always  been  practised  so  before 
me,  and  everybody  else  that  I  ever  knew. 
We  ahvays  inquire,  in  these  cases,  what  it 
will  cost  to  put  the  premises  in  repair,  and 
give  so  much  damages,  and  the  plaintiff 
ought  in  justice  to  apply  the  damages  to  the 
repair  of  the  premises." 

According  to  later  cases,  when  the  lessor 
sues  on  the  covenant  to  repair,  pending  the 
lease,  and  so  before  he  is  entitled  to  posses- 
sion of  the  premises,  the  damages  may  per- 
haps be  limited  to  the  diminution  in  the  mar- 
ket value  of  his  estate.  See  Nixon  v.'  Den- 
ham.  1  Ir.  Law  R.  100,  1  Jebb  &  S.  416:  Smith 
V.  Peat,  9  Exch.  161;  Macnamara  v.  Vincent, 
2  Ir.  Ch.  481;  Davies  v.  Underwood,  2  Hurl. 
&  N.  570;  Bell  v.  Hayden.  9  Ir.  C.  L.  301; 
Mills  V.  Guardians  of  Poor.  L.  R.  8  C.  P.  79; 
Mayne.  Dam.  (.3d  Ed.)  229.  But  when  the 
action  is  brought  after  the  end  of  the  term, 
the  measure  of  damages  is  still  held  to  be 
such  a  sum  as  will  put  the  premises  in  the 
condition  in  which  the  tenant  is  bound  to 
leave  them.  Mliott  v.  Watkins,  1  Jones, 
Exch.  308;  Burdett  v.  Withers.  7  Adol.  &  E. 
136,  2  Nev.  &  P.  122;  Penley  v.  Watts.  7 
Mees.  &  W.  601,  610,  611;  Payne  v.  Haine, 
16  Mees.  &  W.  541;  Yates  v.  Dunster,  11 
Exch.  15;  Rawlings  v.  Morgan,  18  C.  B.  (N. 
S.)  776;  Mayne,  Dam.  232,  233.  In  Yates  v. 
Dunster,  Baron  Parke  (luoted  the  statement 
of  Lord   Holt,   above  cited,   and  referred   to 


Newcastle  v.  Broxtowe,  4  Barn.  &  Adol.  273, 
1  Nev.  &  Man.  .^i9S,  in  which,  in  an  action 
against  the  hundred  for  the  demolition  of  a 
house  by  rioters,  it  was  held  that  the  owner 
of  the  house  was  entitled  to  recover  that  suin 
of  money  which  would  replace  the  house,  as 
nearly  as  practicable,  in  the  situation  and 
state  it  was  at  the  time  of  the  outrage  com- 
mitted, although  the  injury  to  its  rental  value 
was  only  one  fourth  as  much. 

^^■ithout  undertaking  to  lay  dcjwn  an  in- 
flexible rule,  ai)plicable  to  all  cases,  we  are 
of  opinion  that  in  the  present  case  the  de- 
fendant is  not  aggrieved  by  the  ruling  at  the 
trial.  The  action  is  brought  after  the  termi- 
nation of  the  lease,  and  the  surrender  of  the 
premises  by  the  defendant  to  the  plaintiff. 
The  wrong  complained  of  is  not  mere  dilapi- 
dation or  suffering  to  go  to  decay;  but  it  is 
the  voluntary 'removal  of  fixtures  that  had 
been  annexed  to  the  freehold,  and  were  part 
of  the  plaintiff's  real  estate,  at  the  beginning 
of  the  lease  sued  on.  Watriss  v.  Bank,  124 
Mass.  571.  In  such  a  case,  the  measure  of 
damages  must  be  the  sum  which  will  put  the 
premises  in  the  condition  in  which  the  de- 
fendant was  bound  to  leave  them,  allowing 
for  reasonable  use  and  wear.  When  that 
sum  is  less  than  the  diminution  in  the  mar- 
ket value  of  the  premises  by  the  removal  of 
the  structures,  neither  party  suffers  by  this 
rule;  because  the  plaintiff,  by  applying  that 
sum  to  the  restoration  of  the  premises,  ol)- 
tains  a  full  indemnity.  When,  as  in  this 
case,  that  sum  exceeds  the  amount  of  the  in- 
jury to  the  market  value  of  the  premises,  the 
plaintiff'  is  entitled  to  it:  otherwise,  a  tenant 
Avho,  without  the  consent  of  his  landlord,  had 
altered  the  nature  or  the  arrangement  of  the 
buildings  demised,  might  escape  all  "liability 
for  more  than  nominal  damages  for  the 
breach  of  his  covenant,  by  proving  that  his 
alterations  had  increased  the  market  value 
of  the  estate.  Elliott  v.  Watkins.  above  cit- 
ed.    Maddock  v.  Mallet.  12  Ir.  C.  L.  173. 

This  case  is  not  distinguishable  in  principle 
from  Lawton  v.  Railroad  Co.,  8  Cush.  230, 
which  was  an  action  for  breach  of  an  agree- 
ment to  build  fences  between  the  lands  of 
the  plaintiff  and  of  the  defendant;  the  de- 
fendant contended  that  the  plaintiff  could 
only  recover  damages  for  the  injury  to  his 
land  by  its  being  unfenced;  but  it  was  held 
that  he  was  entitled  to  the  sum  Avhich  it 
would  fairly  cost  to  put  up  the  fences  accord- 
ing to  the  agreement. 

Whether  the  defendant  is  legally  entitled  to 
an  allowance  for  the  increase  of  value  by  sub- 
stituting new  material  for  old  need  not  be 
considered,  because  in  this  case  such  an  al- 
lowance has  been  made  with  the  plaintiff's 
assent. 

Judgment  for  the  plaintiff  for  the  larger 
sum. 


314 


BREACH   OF   CUNTUACTS   KESl'ECTING    PERSONAL   SERVICE. 


SUTHERLAND   v.   AVYER   et  al. 

(67  Me.  64.) 

Supreme  Judicial  Court  of  Maine.     April  9, 
1877. 

Exceptions  from  superior  court.  Cumber- 
land county. 

Assumpsit  by  John  Sutherland  against  I.  T. 
Wyer  and  others  to  recover  for  broach  of 
contract.  On  December  27th  following,  the 
company  of  which  the  plaintiff  was  one  were 
addressed  by  one  of  the  defendants  as  fql- 
lows:  "I^adies  and  gentlemen,  I  find  it  nec- 
essary to  reduce  your  salaries  one-third;  any 
one  not  willing  to  accept  these  terms  will  get 
their  full  salary  this  week  and  be  dischar- 
ged." . 

The  following  correspondence  was  also  m- 
troduced: 

•Turtland,  December  29,  1875.  Mr.  J.  Suth- 
erland: Your  salary,  from  this  date,  will  be 
twenty-four  dollars  per  week.  Per  order, 
I.  T.  Wyer,  Wm.  Weeks,  Treasurer." 

"Portland.  December  31,  1875.  I.  T.  Wyer, 
Esq.  Dear  Sir:  Your  note  intimating  your 
determination  to  reduce  my  salary  from  the 
27th  instant,  duly  received.  I  most  respect- 
fully refuse  to  assent  to  any  such  proposition, 
and  will  expect  my  full  salary  every  week,  in 
fuimiment  of  the  terms  of  our  contract.  Re- 
spectfully yours,  J.  Sutherland." 

"Portland,  January  3,  1876.  Mr.  Suther- 
land: Your  services  will  not  be  required  at 
the  Portland  Museum  after  January  8,  1876. 
I.  T.  Wyer." 
The  jury  were  instructed  as  follows: 
"If,  on  the  other  hand,  you  find  for  the 
plaintiff  upon  both  branches  of  the  case,  you 
will  come  to  the  question  of  damages,  which 
in  this  case  assumes  a  somewhat  peculiar 
phase.  The  writ  is  dated  .January  11th. 
When  the  writ  was  brought,  according  to  the 
contract  nothing  whatever  was  due  to  the 
plaintiff.  The  plaintiff  had  been  paid  in  full 
up  to  January  8th.  And  this  writ  was 
brought  on  Tuesday,  the  11th,  before  another 
week  had  elapsed.  So,  according  to  the  terms 
of  the  contract,  when  this  action  was  brought 
nothing  whatever  was  due  to  the  plaintiff. 

"The  general  rule  is— and  it  is  almost  an  in- 
variable rule,  with  the  exception  of  some 
classes  where  prospective  damages  are  al- 
lowed resulting  from  injury— that  the  damage 
to  be  allowed  is  the  damage  that  had  ac- 
crued when  the  writ  was  brought.  The  or- 
dinary rule  is  that  a  man  can  only  recover 
Avhat  was  due  him  at  the  time  when  he  sued. 
But  I  apprehend  there  is  a  rule  which  will 
guide  as  correctly  in  determining  the  dam- 
ages here.  The  damage  to  be  allowed  is  what 
had  been  sustained  by  the  plaintiff  at  the 
time  this  writ  was  l)rought.  Now  what  is 
that  damage  he  had  sustained  then?  It  is 
conceded  that  he  had  been  discharged.  He 
had  lost  then  the  prospect  of  earning  his 
wages  in  accordance  with  the  terms  of  the 
contract;    that   is   to  say,   when   he   brought 


this    writ  he    had    been    discharged,    and    of 
course  if  you  come  to  this  question  of  dam- 
ages, the  defendant  had  broken  his  contract. 
"With  the  contract  in  full  force  the  plain- 
tiff had  a  certainty  of  $35  a  week  during  the 
theatrical  season.    AS  we  are  discussing  the 
question  of  damages  we  will  assume  the  de- 
fendant had  broken  the  contract.     By  break- 
ing the  contract  the  defendant  had  deprived 
the  plaintiff  of  the  right  to  earn  by  his  serv-  • 
ices  $35  per  week  according  to  the  terms  of 
the  contract  during  the  theatrical  season.     So 
that  the  certainty  of  earning  the  money,  in 
accordance  with  the  terms  of  the  contract,  is 
one  thing  the  plaintiff  had  lost;    but  it  does 
not  follow  that  he  is  entitled  to  recover  that 
full  sum  during  the  theatrical  season.     A  man 
has  not  the  right  to  remain  idle  if  other  work 
offers  and  charge  the  whole  amount  to  his 
employer.     Notwithstanding   the   damage    iu 
such  case  done  to  the  plaintiff,  the  law  would 
still  require  him  to  exercise  his  best  diligence 
to  obtain  new  employment  and  so  diminish 
the  damage.     So  that  the  rule  of  damage  in 
this  case,  as  I  understand  it  and  as  I  give 
it  to  you  for  the  purpose  of  this  case,  would 
be  the  amount  accruing  subsequently  to  the 
discharge  in  accordance  with  the  terms  of  the 
contract  itself,  less  whatever  you  are  satis- 
fled  from  the  evidence  iu  the  case   the  plain- 
tiff might  earn  by  the  exercise  of  reasonable 
and  proper  diligence  on  his  part.     The  jury 
must  take  the  whole  testimony  together,  and 
from  their  best  judgment  of  what  the  plain- 
tiff might  earn  by  the  exercise  of  reasonable 
diligence  on  his  part,  and  that,  if  you  come 
to  the  question  of  damages,  you  must  deduct 
from  the  amount  due  according  to  the  con- 
tract." 

Verdict  for  plaintiff.  Defendants  moved  to 
set  the  verdict  aside,  and  excepted.  Judg- 
ment for  plaintiff  on  conditions. 

C.  Hale,  for  plaintiff.  J.  Howard,  N, 
Cleaves,  and  H.  B.  Cleaves,  for  defendants, 

VIRGIN,  J,  The  plaintiff  contracted  with 
the  defendants  to  "play  first  old  man  and 
character  business,  at  the  Portland  museum, 
and  to  do  all  things  requisite  and  necessary 
to  any  and  all  performances  which"  the  de- 
fendants "shall  designate,  and  to  conform 
strictly  to  all  the  rules  and  regulations  of 
said  theatre,"  for  thirty-six  weeks,  commen- 
cing on  Sept.  (),  1875.  at  thirty-five  dollars 
per  week;  and  the  defendants  agreed  "to 
pay  him  thirty-five  dollars  for  every  week  of 
public  theatrical  representations  during  said 
season."  By  one  of  the  rules  mentioned, 
the  defendants  "reserved  the  right  to  dis- 
charge any  person  who  may  have  imposed  on 
them  by  engaging  for  a  position  which,  in 
their  judgment,  he  is  incompetent  to  till  prop- 
erly." 

The  plaintiff  entered  upon  his  service  under 
the  contract,  at  the  time  mentioned  therein, 
and  continued  to  perform  the  theatrical  char- 
acterizations  assigned   to    him,    without   any 


DAMAGES  IN  ACTIONS  AGAINST  EMPLOYER. 


31.1 


suggestion  of  iiicoinpeteucy,  and  to  receive 
the  stipulated  weelvly  salary,  until  the  end  of 
the  eighteenth  week;  when  he  was  dischar- 
ged by  the  defendants,  as  they  contended  be- 
fore the  jury,  for  incompetency  under  the 
rule;  but,  as  the  plaintiff  there  contended,  for 
the  reason  that  he  declined  to  accept  twenty- 
foiu-  dollars  per  week  during  the  remainder 
of  his  term  of  service. 

■  Three  days  after  his  discharge  and  before 
the  expiration  of  the  nineteenth  week,  the 
plaintiff  commenced  this  action  to  recover 
damages  for  the  defendants'  breach  of  the 
contract.  The  action  was  not  premature. 
The  contract  was  entire  and  indivisible.  The 
performance  of  it  had  been  commenced,  and 
the  plaintiff  been  discharged  and  thereby 
been  prevented  from  the  further  execution  of 
it;  and  the  action  was  not  brought  until 
after  the  discharge  and  consequent  breach. 
Howard  v.  Daly,  61  N.  Y.  362.  and  cases; 
Dugan  v.  Anderson,  36  Md.  567,  and  cases. 
The  doctrine  of  Daniels  v.  Newton,  114  Mass. 
5,30.  is  not  opposed  to  this.  Neither  do  the 
defendants  insist  that  the  action  was  prema- 
turely commenced;  but  they  contend  that  the 
verdict  should  be  set  aside  as  being  against 
the  weight  of  evidence. 

The  verdict  was  for  the  plaintiff.  The  jury 
must  therefore  have  found  the  real  cause  of 
his  discharge  to  be  his  refusal  to  consent  to 
the  proposed  reduction  of  his  salary.  The 
evidence  upon  this  point  was  quite  conflict- 
ing. Considering  that  all  the  company  were 
notified,  at  the  same  time,  that  their  respec- 
tive salaries  would  be  reduced  one-third, 
without  assigning  any  such  cause  as  Incom- 
petency; that  no  suggestion  of  the  plaintiff's 
incompetency  was  ever  made  to  him,  prior 
to  his  discharge;  and  that  his  written  dis- 
<:harge  was  equally  silent  upon  that  subject, 
—we  fail  to  find  sutticient  reason  for  disturb- 
ing the  verdict  upon  this  ground  of  the  mo- 
tion, especially  since  the  jury  might  well  find 
as  they  did  on  this  branch  of  the  case,  pro- 
vided they  believed  the  testimony  in  behalf 
of  the  plaintiff. 

There  are  several  classes  of  cases  founded 
both  in  tort  and  in  contract,  wherein  the 
plaintiff  is  entitled  to  recover,  not  only  the 
damages  actually  sustained  when  the  action 
was  commenced,  or  at  the  time  of  the  trial, 
but  also  whatever  the  evidence  proves  he 
will  be  likely  to  suffer  thereafter  from  the 
same  cause.  Among  the  torts  coming  within 
this  rule,  are  personal  injuries  caused  by  the 
wrongful  acts  or  negligence  of  others.  The 
injury  continuing  beyond  the  time  of  trial, 
the  future  as  well  as  the  past  is  to  be  consid- 
ered, since  no  other  action  can  be  maintain- 
(h1.  So  in  cases  of  contract  the  performance 
of  which  is  to  extend  throttgh  a  period  of 
time  which  has  not  elapsed  when  the  breach 
is  made  and  the  action  brought  therefor  and 
the  trial  had.  Remelee  v.  Hall,  31  Vt.  582. 
Among  these  are  actions  on  bonds  or  unseal- 


ed contracts  stipulating  for  the  support  of 
persons  during  their  natural  life.  Sibley  v. 
Rider,  54  Me.  463;  Philbrook  v.  Burgess,  52 
Me.  271. 

The  contract  in  controversy  falls  within  the 
same  rule.  Although,  as  practically  constru- 
ed by  the  parties,  the  salary  was  payable 
weekly,  still,  when  the  plaintiff  was  peremp- 
torily discharged  from  all  further  service 
during  the  remainder  of  the  season,  such  dis- 
charge conferred  upon  him  the  right  to  treat 
the  contract  as  entirely  at  an  end,  and  to 
bring  his  action  to  recover  damages  for  the 
breach.  In  such  action  he  is  entitled  to  a 
just  recorupense  for  the  actual  injury  sus- 
tained by  the  illegal  discharge.  Prima  facie, 
such  recompense  would  be  the  stipulated 
wages  for  the  remaining  eighteen  weeks. 
This,  however,  would  not  necessarily  be  the 
sum  which  he  would  be  entitled  to;  for  in 
cases  of  contract  as  well  as  of  tort,  it  is  gen- 
erally incumbent  upon  an  injured  paity  to 
do  whatever  he  reasonably  can,  and  to  im- 
prove all  reasonable  and  proper  opportunities 
to  lessen  the  injury.  Miller  v.  Mariners' 
Church,  7  Me.  51,  56;  .Jones  v.  Jones,  2  Swan, 
60»;  2  Greenl.  Ev.  §  261,  and  notes;  Cham- 
berlin  v.  Morgan,  68  Pa.  St.  168;  Sedg.  Meas. 
Dam.  (6th  Ed.)  416,  417,  cases  supra.  The 
plaintiff  could  not  be  justified  in  lying  idle 
after  the  breach;  but  he  was  bound  to  use 
ordinary  diligence  in  securing  employment 
elsewhere,  during  the  remainder  of  the  term; 
and  whatever  sum  he  actually  earned  or 
might  have  earned  by  the  use  of  reasonable 
diligence,  should  be  deducted  from  the 
amount  of  the  unpaid  stipulated  wages.  And 
this  balance  with  interest  thereon  should  be 
the  amount  of  the  verdict.  Applying  the  rule 
mentioned,  the  verdict  will  be  found  too  large. 

By  the  plaintiff's  own  testimony,  he  receiv- 
ed only  $60,  from  all  sources  after  his  dis- 
charge,—$25  in  February,  and  $35  from  the 
10th  to  the  20th  of  April,  at  Booth's.  His 
last  engagement  was  for  eight  weeks,  com- 
mencing April  10th,  which  he  abandoned  on 
the  20th,  thus  voluntarily  omitting  an  oppor- 
tunity to  earn  .$57,  prior  to  the  expiration  of 
his  engagement  with  the  defendants,  when 
the  law  required  him  to  improve  such  an  op- 
portunity, if  reasonable  and  proper.  We 
think  he  should  have  continued  the  last  en- 
gagement until  May  6th,  instead  of  abandon- 
ing it  and  urging  a  trial  in  April,  especially 
inasmuch  as  he  could  have  obtained  a  trial 
in  May  just  as  well.  The  instructions  taken 
together  were  as  favorable  to  the  defendants 
as  they  were  entitled  to. 

If,  therefore,  the  plaintiff  will  remit  $57, 
he  may  have  judgment  for  the  balance  of  the 
verdict;  otherwise  the  entry  must  be  verdict 
set  aside  and  a  new  trial  granted. 

APPLETON,  C.  J.,  and  DICKERSON, 
BARROWS,  DANFORTH,  and  LIBBEl, 
JJ.,  concurred. 


aiG 


KIIEACII   OF   CONTRACTS   RESPECTING   PERSONAL   SERVICE. 


LIDDELL  V.   CHIDESTER. 

(4  South.  426,  S4  Ala.  508.) 

Supreme  Court  of  Alabama.     June  14,  18S8. 

Appeal  from  circuit  court,  Moutgoinery 
couuty;    John  P.  Hubbard,  Judge. 

This  was  an  action  brought  by  the  appellee, 
Thomas  H.  Chidester,  against  the  appellant, 
Forbes  Liddell,  for  the  recovery  of  a  balance 
alleged  to  be  due  the  plaintiff  from  the  de- 
fendant for  services  rendered,  and  by  contract 
entered  into  by  plaintiff  and  defendant.  The 
defendant  pleaded  the  general  issue,  payment, 
and  res  adjudicata.  The  plaintiff  demurred 
to  the  defendant's  plea  of  res  adjudicata.  The 
«'ourt  overruled  the  demurrer.  There  was 
then  a  replication,  and  the  pleadings  were 
very  full.  The  court  charged  the  jury,  at  the 
written  request  of  the  plaintiff,  as  follows: 
(1)  "If  the  jury  believe  all  the  evidence,  they 
must  find  a  verdict  for  the  plaintiff."  (2)  "If 
the  jury  believe  the  evidence,  the  plaintiff 
would  be  entitled  to  recover  the  balance  due 
under  said  contract  for  each  month,  or  part 
of  a  month  thereof,  from  the  1st  day  of  Au- 
gust, 1S8.~>.  at  the  contract  price,  until  the  end 
of  the  contract  year,  which  was  February  26, 
1886,  with  interest  thereon  from  this  last 
date."  The  defendant  objected  to  the  giving 
of  each  of  these  charges  by  the  court,  and 
duly  excepted  to  the  court's  overruling  his 
objection.  The  rulings  of  the  court  on  the 
demurrer,  and  the  giving  of  the  first  and  sec- 
ond charges  requested  by  the  plaintiff,  were 
here  assigned  as  error. 

Arrington  &  Graham,  for  appellant.  Troy, 
Tompkins  tfc  London,  for  appellee.  » 

STONE,  C.  J.  The  most  important  inquiry 
in  this  case,  alike  of  law  and  of  fact,  was 
whether  Chidester  was  employed  by  Liddell 
to  perform  a  year's  service  for  .$1,000,  to  be 
paid  in  gross,  or  to  be  paid  in  monthly  install- 
ments. If  the  former,  then  the  recovery  and 
enforcement  of  the  judgment  for  a  part  of  the 
demand  in  June,  1886,  is  a  complete  defense 
and  bar  to  this  action,  and  nothing  should  be 
recovered.  This,  under  the  well-known  prin- 
ciple that  a  plaintiff  cannot  split  up  a  single 
cause  of  action  into  two  or  more  suits;  and 
if  he  does  so,  and  recovers  a  part  of  his  de- 
mand, this  is  a  waiver  of  and  a  bar  to  the 
lesidue  of  his  claim,  be  it  much  or  little. 
Oliver  v.  Holt,  11  Ala.  574;  O'Neal  v.  Brown, 
21  Ala.  482;  Railroad  Co.  v.  Henlein,  5(5  Ala. 
368;  Wharlon  v.  King,  69  Ala.  365.  If,  on 
the  other  hand,  the  wages  were  due  and  de- 
mandable  at  the  end  of  each  month,  then  the 
recovery  of  one  installment,  unreversed,  is  a 
complete  answer  to  and  preclusion  of  all  de- 
fenses to  the  merits  which  were  or  could  be 
pleaded  to  such  se'cond  suit.  Rake  v.  I'ope, 
7  Ala.  161;  ;^  Brick.  Ala.  Dig.  p.  580,  §  75  et 
seq.;  1  Whart.  Ev.  §  758;  Gardner  v.  Buck- 
ler, 3  Cow.  120.  The  contract  in  this  case  was 
by  telegraphic  correspondence.  Liddell's  offer 
was:  "If  one  thousand  dollars  a  year  is  an 
inducement,     come     Immediately.     Answer," 


Chidester's  acceptance  was:     "Will  accept  one 
thousand  dollars  a  year."     These  communica- 
tions, unexplained,  show  a  single  contract  for 
a    year;     the    wages   to    be    ifl.OOO    in    gross. 
There  was  testimony  that,  up  to  the  time  of 
Chidester's  discharge,  his  wages  were  paid  to 
him  monthly;  but  the  testimony  on  this  sub- 
ject was  somewhat  in  conflict.     Partridge  v. 
Forsyth,  29  Ala.  200;    Commercial  Fire  Ins. 
Co.   v.   Capital  City  Ins.    Co.,  81  Ala.  320,   8 
South.  222.     It  is  contended  for  the  appellee 
that  the  verdict  and  judgment  in  the  former 
suit— that  which  was  tried  in  1886— are  conclu- 
sive that  chidester's  wages  were  due  and  pay- 
able in  monthly  installments,  and  that  without 
such  finding  the  jury  could  not  have  rendered 
a  verdict  in  his  favor.     The  elements  neces- 
sary to  constitute  a  judgment  in  one  suit  a 
bar  to  a  second  suit  are  "(1)  that  the  issue  in 
the  second  action,  upon  which  the  judgment 
is  brought  to  bear,  was  a  material  issue  in  the 
first    action,    necessarily    determined    by    the 
judgment  therein;    (2)  that  the  former  judg- 
ment was  upon  the  merits."     Freem.  Judgni. 
§  256.     "It  is  only  of  those  matters   which, 
as  promises,  enter  into  and  uphold  the  judg- 
ment, (the  judgment  being  the  conclusion  of 
the  syllogism,)  and  connected,  qualifying  mat- 
ters, which,  if  produced,  woidd  change  or  im- 
pair the  legal  force  and  effect  of  the  cause  of 
action  itself  on  which  the  judgment  was  ren- 
dered, that  the  judgment  pronounced  becomes 
conclusive."     Haas  v.  Taylor,  80  Ala.  4.59,  2 
South.  633.     To  be  a  bar  it  must  appear  that 
the    fact    claimed    to    have    been    established 
"was  essential  to  the  finding  of  the   former 
verdict."     1  Greenl.  Ev.  §  534;    Chamberlain 
V.  Gaillard.  26  Ala.  504;    Gilbreath  v.  Jones, 
66  Ala.   129;    McCall  v.   Jones,   72  Ala.  368; 
Hanchey   v.   Coskrey,   81  Ala.   149,    1   South. 
259.     In  the  first  suit,  instituted  before  a  jus- 
tice of  the  peace,  the  cause  of  action  was  de- 
scribed as  follows:     "The  plaintiff  claims  of 
defendant  $41.50,  due  by    on  26th  %Jnly.  1885, 
for  salary  due  and  for  services  rendered  by 
plff.  to  the  deft."     When  the  case  reached  the 
circuit  court  by  appeal,  a  new  complaint  Avas 
tiled  with  three  counts,  two  common  and  one 
special.     The  first  count  was  "for  work  and 
labor  done  by  the  plaintiff  for  the  defendant, 
and  at  his  request,  during  the  month  of  July, 
1885."     The  second  count  was  for  the  "sum 
of  fifty  dollars  due  by  account  stated  between 
the  plaintiff  and  the  defendant  on,  to-wit,  the 
1st  day  of  August.   1885."     The  third   count 
was  a  special  count.     It  averred  that  there 
was  a  contract  for  a  year,  the  wages  to  be 
paid  in  monthly  installments  of  .*P83.33;    that 
plaintiff.    Chidester,    was   serving,    and    ready 
to  serve,  when  on  July  15,  1885,  without  fault 
on ,  his  part.    Liddell   discharged   him.   paying 
him  on  that  month's  wages  .1?30.  leaving  the 
balance,    .|41.50,    unpaid.     For    that    balance, 
with    interest,    this    count  claimed   judgment. 
The  recovery  was  for  that  sum,  with  interest, 
which  was  acquiesced  in  and  paid.     It  is  set- 
tled  in   this   state,    by   many  decisions,    that, 
when  Chidester  was  discharged,  he  had  the 


DAMACJES  IN  ACTIONS  AGAINST  EMPLOYEK. 


317 


option  of  one  of  three  remedies  if  the  dis- 
charge was  wrongful:  (1)  He  could  have 
elected  to  treat  the  contract  as  rescinded,  and 
sue  on  a  quantum  meruit  for  any  labor  he 
may  have  performed;  (2)  he  could  have  sued 
at  once  for  an  entire  breach  of  the  contract 
by  the  defendant,  in  which  event  he  would 
have  been  entitled  to  recover  all  damages  he 
suffered  up  to  the  trial,  not  exceeding  the  en- 
tire wages  he  could  have  earned  imder  the 
contract;  or  (3)  he  could  have  waited  until 
his  wages  would  mature  mider  the  terms  of 
the  contract,  and  sue  and  recover  as  upon 
performance  <in  his  part.  Each  of  these 
alternate  rights,  as  we  have  seen,  was  depend- 
ent on  his  fixing  on  Liddell  the  fault  of  his 
discharge.  Strauss  v.  Meertief,  64  Ala.  :il)9; 
Davis  V,  Ayres,  9  Ala.  292;  Kamey  v.  Hol- 
c<)ml)e.  21  Ala.  5(>7;  Fowler  v.  Armour.  24 
Ala.  194;  Holloway  v.  Talbot.  70  Ala.  389; 
Wilkinson  v.  Black.  80  Ala.  329;  3  Wait.  Act. 
&  Def.  GOG.  And,  when  wages  are  payable 
in  installments,  suits  may  be  l)rought  on  the 
several  installments  as  they  mature.  Davis 
V.  Preston,  G  Ala.  S3.  It  is  manifest  that  the 
former  suit  was  not  brought  on  the  first  of 
the  alternate  grounds  stated  above.  There  is 
nothing  to  show  tliat  it  relied  on  the  rescis- 
sion or  abandonment  of  the  contract;  and, 
if  it  had,  there  were  no  past  services  actually 
rendered,  and  unpaid  for.  on  which  to  found 
a  recovery.  The  suit  Avas  for  that  part  of  the 
salary  for  July  which  had  not  been  paid. 
Nor  was  the  suit  brought  on  tl*e  second  of 
the   grounds.— an    entire   breach    of   the   con- 


tract. On  the  contrary,  it  treated  the  cnn- 
tract  as  continuing  through  the  month  of 
July,  and  sued  for  the  wages  alleged  to  have 
been  constructively  earned  in  July,  after  the 
discharge.  The  former  suit  was,  then, 
brought  on  tlie  third  of  the  grounds,  treating 
the  contract  as  still  binding  on  I^iddell,  and 
claiming  wages  according  to  its  terms.  It 
was  brought  July  27,  1885,  the  first  day  after 
the  completion  of  one  of  the  months  of  the 
wage  year.  If  the  contract  was  for  the  pay- 
ment of  $1,000  in  gross  at  the  end  of  the  year, 
February  26,  1886.  that  suit  was  premature- 
ly brought,  and  there  could  have  been  no  re- 
covery. It  was  indispensable  to  plaintiff's 
right  of  recovery  to  show  that,  bj^  the  terms 
of  the  contract,  his  wages  were  due  in  montli- 
ly  installments,  one  instaUment  of  which  had 
matured.  This  was  "essential  to  the  finding 
of  the  former  verdict."  The  foregoing  facts 
are  placed  beyond  dispute  in  the  record  be- 
fore us.  They  estop  Liddell  from  denying 
that,  by  the  terms  of  his  contract  Avith  Chi- 
dester.  he  was  to  pay  him  wages  in  montlily 
installments,  and  that  he  dischai'ged  plaintiff 
without  cause;  and  the  same  inevitable  result 
would  follow,  no  matter  what  proof  he  might 
offer  that  the  contract  was  for  the  payment 
of  Chidester's  salary  in  gross,  and  that  he 
had  good  grounds  for  discharging  him.  We 
have  not  deemed  it  necessary  to  consider  the 
niUngs  on  demurrer.  Whether  right  or 
wrong,  they  could  not  have  affected  the  de- 
fendant injuriously.  There  was  no  error  in 
the  charges  of  the  court.     Affirmed. 


■Sib 


liKKACll   OF   CUXTKACTS    UESrK('llN<!    PKIISOXAL    SKUVlCi:. 


McMULLEN  v.   DICKINSON   CO. 

(02  N.  W.  120.  fiO  Minn.  ir>6.) 

Snprome  Court  of  Minnesota.     Jan.  30,  1895. 

Appeal  from  district  court,  Hennepin  coun- 
ty;   Seasrave  Smith,  Judi^e. 

Action  by  William  McMullen  atiainst  the 
Dickinson  Company.  From  an  order  sustain- 
inj;  a  demurrer  to  tlie  answer,  defendant  ap- 
peals.    Aftirmed. 

Penney,  Welch  &  Hayne  and  H.  J.  Horn, 
for  appellant.  W.  H.  Donahue,  for  respond- 
ent. 

CANTY.  .T.  On  the  2.^)tli  of  February,  1892, 
Ihe  plaintiff  entered  into  a  written  af^reenient 
with  the  defendant  corporation,  whereby  it 
acreed  to  employ  him  as  its  assistant  mana- 
ger, from  and  after  that  date,  as  Ions  as  he 
should  own  in  his  own  name  50  shares  of  the 
capital  stock  of  said  corporation,  fully  paid 
up,  and  the  business  of  said  corporation  shall 
be  continued,  not  exceeding  the  term  of  the 
existence  of  said  corporation,  and  pay  him 
for  such  services  the  sum  of  $1,500  per  an- 
num, payable  monthly  during  that  time,  and 
whereby  he  agreed  to  perform  said  services 
during  that  time.  He  has  ever  since  owned, 
as  provided,  the  50  shares  of  said  stock,  and 
performed  said  sei-vices  ever  since  that  time 
until  the  28th  of  October,  1893.  when  he  was 
discharged  and  dismissed  by  the  defendant 
without  cause.  He  alleges  these  facts  in  his 
complaint  in  this  action,  and  also  alleges  that 
he  has  been  ever  since  he  was  so  dismissed, 
and  is  now,  ready  and  willing  to  perform 
said  services  as  so  agreed  upon,  and  that 
there  is  now  due  him  the  sum  of  .'^125  for  each 
of  the  months  of  March  and  April,  1894,  and 
prays  judgment  for  the  sum  of  $250.  The 
defendant  in  its  answer,  for  a  second  defense, 
alleges  that  on  March  2,  1894,  plaintiff  com^ 
menced  a  similar  action  to  this  for  the  recovery 
of  the  sum  of  $512,  fortho  period  of  lime  from 
his  said  discharge  to  the  1st  of  March,  1894, 
alleging  the  same  facts  and  the  same  breach, 
ami  that  on  April  16,  1894,  he  recovered  judg- 
ment in  that  action  against  this  defendant 
for  that  sum  and  costs,  and  this  is  pleaded  in 
bar  of  the  present  action.  The  plaintiff  de- 
murred to  this  defense,  and  from  an  order 
sustaining  the  demm-rer  the  defendant  ap- 
peals. 

The  plaintiff  brought  each  action  for  install- 
ments of  wages  claimed  to  be  due,  on  the 
theory  of  consti'uctive  service.  The  doctrine 
of  constractive  service  was  first  laid  down  by 
Lord  Ellonborough  in  Gandell  v.  Pontigny,  4 
Camp.  375,  and  this  case  was  followed  in  Eng- 
land and  this  country  for  a  long  time  (Wood, 
Mast.  &  Serv.  254),  and  is  still  upheld  by  sev- 
eral courts  (Isaacs  v.  Davies,  68  Ga.  109; 
Armfield  v.  Nash,  31  Miss.  361;  Strauss  v. 
Meertief,  64  Ala.  299).  It  has  been  repudiat- 
ed by  the  courts  of  England  (Goodman  v.  Po- 
cock,  15  Adol.  &  E.  [N.  S.]  574;   Wood,  Mast. 


&  Serv.  254),  and  by  many  of  the  courts  in 
this  country   (Id.;    and  notes  to  Decamp  v. 
Hewitt,  43  Am.  Dec.  204),  as  unsound  and  in 
consistent  with  itself,  as  it  assumes  that  the 
discharged  servant  has  since  his  discharge  re- 
mained ready,  willing,   and  able   to  perform 
the  services  for  which  he  was  hired,   while 
sound  principles  require  him  to  seek  employ- 
ment   elsewhere,    and    thereby    mitigate   the 
damages  caused  by  his  discharge.     His  rem- 
edy is  for  damages  for  breach  of  the  contract, 
and  not  for  wages  for  its  performance.     But 
the  courts,  which  deny  his  right  to  recover 
wages  as  for  constructive  service,  have  de- 
nied  him  any  remedy  except  one  for  dam- 
ages, which,  if  seemingly  more  logical  in  the- 
ory, is  most  absurd  in  its  practical  results. 
These  courts  give  him  no  remedy  except  the 
one  which  is  given  for  the  recovery  of  loss  of 
profits  for  the  breach  of  other  contracts,  and 
hold  that  the  contract  is  entire,  even  though 
the  wages  are  payable  in  installments,   and 
that  he  exhausts  his  remedy  by  an  .action  for 
a  part  of  such  damages,  no  matter  how  long 
the  contract  would  have  run  if  it  had   not 
been  broken.    See  James  v.  Allen  Co.,  44  Ohio 
St.  226,  6  N.   E.  24<;;    Moody  v.  Leverich,  4 
Daly,  401;    Colburn  v.  Wood  worth.  31    Barb. 
381;    Booge  v.  Railroad  Co.,  33  Mo.  212.     No 
one  action  to  recover  all  the  damages  for  such 
a  breach  of  such  a  contract  can  furn.sh  any 
adequate  remedy,   or   do  anything   like   sub- 
stantial justice  between  the  parties.     By  its 
charter  the  life  of  this  corporation  is  thirty 
years.     If   the   action   is    commenced    imme- 
diately after  the  breach,  how  can  prospective 
damages  be  a.ssessed  for  this  thirty  years,  or 
for  even  one  year?     To  presume  that  the  dis- 
charged servant  will  not  be  able  for  a  large 
part  of  that  time  to  obtain  other  employment, 
and  award  him  large  damages,  might  be  grossly 
unjust  to  the  defendant.     Again,  the  servant 
is  entitled  to  actual  indemnity,  not  to  such 
speculative  indemnity  as  must  necessarily  be 
given  by  awarding  him  prospective  damages. 
His  contract  was  not  a  speculative  one.  and 
the  law  should  not  make  it  such.     That  men 
can  and  do  find  employment  is  the  general 
rule,  and  enforced  idleness  the  exception.     It 
should  not  be  presumed  in  advance  that  the 
exceptional  will  occur.     This  is  not  in  con- 
flict with  the  rule  that,  in  an  action  for  retro- 
spective damages  for  such  a  breach,  the  bur- 
den is  on  the  defendant  to  show  that  the  dis- 
charged  servant   could   have    found   employ- 
ment.    In  that  case,  as  in  others,  reasonable 
diligence  will  be  presumed.     When  it  appear.4 
that  he  has  not  found  employment  or  been 
employed,  there  is  no  presumption  that  it  was 
his  fault,  and,  under  such  circumstances,   it 
will  be   presumed   that  the   exceptional   has 
happened.     But  to  presume  that  the  excep- 
tional will  happen  is  very  different.     In  an 
action  for  such  a  breach  of  a  contract  for  serv- 
ices, prospective  damages  beyond  the  day  of 
trial  are  too  contingent  and  uncertain,  and  can- 
not be  assessed.     2  Suth.  Dam.  471;    Gordon 
V.  Brewster,  7  Wis.  355;    Fowler  &  Proutt  v. 


DAMAGES  IN  ACTIONS  AGAINST  EMPLOYEK. 


819 


Armour,  24  Ala.  194;  Wright  v.  Falkner,  37 
Ala.  274;  Colburn  v.  Wotid  worth,  31  Barb. 
385.  Then,  if  the  discharged  servant  can 
have  but  one  action,  it  is  necessary  for  him 
to  starve  and  wait  as  long  as  possible  before 
<'ommencing  it.  If  he  waits  longer  than  six 
years  after  the  breach,  the  statute  of  limita- 
lions  will  have  rim,  and  he  will  lose  his  whole 
<'laim.  If  he  brings  his  action  within  the  six 
years,  he  will  lose  his  claim  for  the  balance 
of  the  time  after  the  day  of  trial.  Under  this 
rule,  the  measure  of  damages  for  the  breach 
of  a  30  year  contract  is  no  greater  than  for 
the  breach  of  a  6  or  7  year  contract.  Such  a 
remedy  is  a  travesty  on  justice.  Although  the 
servant  has  stipulated  for  a  weekly,  monthly, 
or  quarterly  income,  it  assumes  that  he  can 
live  for  years  without  any  income,  after  which 
time  he  will  cease  to  live  or  need  income. 
The  fallacy  lies  in  assuming  that,  on  the 
breach  of  the  contract,  loss  of  wages  is  anal- 
ogous to  loss  of  profits,  and  that  the  same 
rule  of  damages  applies,  while  in  fait  the 
cases  are  wholly  dissimilar,  and  there  is 
scarcely  a  parallel  between  them.  In  the  one 
case  the  liability  is  absolute;  in  the  other  it 
is  contingent.  If  the  nile  of  damages  were 
the  same,  then,  in  the  case  of  the  breach  of 
the  conti'act  for  service,  the  discharged  serv- 
ant should  be  allowed  only  the  amount  which 
the  stipulated  wages  exceed  the  market  value 
of  the  service  to  be  performed,  without  re- 
gard to  whether  he  could  obtain  other  employ- 
ment or  not.  If  the  stipulated  wages  did 
not  exceed  the  market  value  of  the  service, 
he  would  be  entitled  to  only  nominal  dam- 
ages; and  in  no  case  could  his  failure  to  find 
other  employment  vary  the  measure  of  dam- 
ages. Clearly,  this  is  not  the  nile.  In  the 
one  case  the  liabilty  is  a  contingent  liability 
for  loss  of  wages;  in  the  other  case  it  is  an 
absolute  liability  for  loss  of  profits.  Such 
contingent  liability  cannot  be  ascertained  in 
advance  of  the  happening  of  the  contingency, 
and  that  is  why  prospective  damages  for  loss 
of  wages  are  too  contingent  and  are  too 
speculative  and  uncertain  to  be  allowed,  while 
retrcspective  damages  for  such  loss  are  oi 
the  most  certain  character.  On  the  other 
hand,  if  damages  for  loss  of  profits  are  too 
speculative  and  uncertaiu  to  be  allowed,  they 
are  equally  so,  whether  prospective  or  retro- 
spective. "The  pecuniary  advantages  which 
would  have  been  realized  but  for  the  defend- 
ant's act  must  be  ascertained  without  the  aid 
which  their  actual  existence  Avould  afford. 
The  plaintiff's  right  to  recover  for  such  a  loss 
depends  on  his  proving  with  sufiicient  cer- 
tainty that  such  advantages  would  have  re- 


sulted, and,  therefore,  that  the  act  complained 
of  prevented  them."  1  Suth.  Dam.  (1st  Ed.) 
107. 

It  is  our  opinion  that  the  servant  wrongfully 
discharged  is  entitled  to  indemnity  for  loss  of 
wages,  and  for  the  full  measure  of  this  in- 
demnity the  master  is  clearly  liable.  This 
liability  accrues  by  installments  on  successive 
contingencies.  Each  contingency  consists  in 
the  failm-e  of  the  servant  without  his  fault 
to  earn,  during  the  installment  period  named 
in  the  contract,  the  amount  of  wages  which 
he  would  have  earned  if  the  contract  had 
been  performed,  and  the  master  is  liable  for 
the  deficiency.  This  rule  of  damages  is  not 
consistent  with  the  doctrine  of  constructive 
service,  but  it  is  the  rule  which  has  usually 
been  applied  by  the  courts  which  adopted 
that  doctrine.  Under  that  doctrine  the  mas- 
ter should  be  held  liable  to  the  discharged 
servant  for  wages  as  if  earned,  while  in  fact 
he  is  held  only  for  indemnity  for  loss  of 
wages.  The  fiction  of  constructive  service  is 
false  and  illogical,  but  the  measure  of  dam- 
ages given  under  that  fiction  is  correct  and 
logical.  It  is  simijly  a  ca.se  of  a  wrong  rea- 
son given  for  a  correct  rule.  Instead  of  re- 
jecting the  false  reason  and  retaining  the 
correct  rule,  many  courts  have  rejected  both 
the  rule  and  the  reason.  In  our  opinion,  this 
rule  of  damages  should  be  retained;  but  the 
true  ground  on  which  it  is  based  is  not  that 
of  constructive  service,  but  the  liability  of 
the  master  to  indemnify  the  discharged  serv- 
ant, not  to  pay  him  wages,  and  this  indemnity 
accrues  by  installments.  The  original  breach 
is  not  total,  but  the  failure  to  pay  the  succes.s- 
ive  installments  constitutes  successive  breach- 
es. Since  the  days  of  Lord  Ellenborough  this 
class  of  cases  has  been  in  some  courts  an  ex- 
ception to  the  rule  that  there  can  be  but  one  ac- 
tion for  damages  for  the  breach  of  a  contract, 
and  there  are  strong  reai.ons  why  it  should 
be  an  exception.  Because  the  discharged 
servant  may,  if  he  so  elects,  bring  successive 
actions  for  the  installments  of  indemnity  as 
tliey  accrue,  it  does  not  follow  that  he  can- 
not elect  to  consider  the  broach  total,  and 
bring  one  action  for  all  his  damages,  and  re- 
cover all  of  the  same  accruing  up  to  the  time 
of  trial.  Fowler  &  Proutt  v.  Armour.  24  Ala. 
194;  Strauss  v.  Meertief,  64  Ala.  291J.  But 
the  wrongdoer  can  have  no  such  election.  He 
should  not  be  allowed  to  take  advantage  of 
his  own  wrong,  and,  for  the  purpose  of  pre- 
venting the  use  of  any  adetiuate  remedy  and 
defeating  any  adequate  recovery,  to  insist  that 
his  own  breach  is  total.  The  order  appealed 
from  should  be  aftii-med.     So  ordered. 


320 


BREACH  OF   CONTRACTS   RESPECTING   PERSONAL    SEUVICE. 


OLMSTEAI)  V.  BACH  ot  al. 

(27  Atl.  r.Ol.   TS  Md.   182.) 
Conrt  of  Appeals  of  MmivIhihI.      Oct.  5.  1893. 

Appt'al  from  Baltimore  city  coui-t. 

Action  by  Charles  B.  Olmstead  again.st 
Henry  Bach,  Jr.,  and  oUier.s.  for  breach  of 
contract  of  employment.  A  demurrer  to  the 
repr cation  was  siistained,  and  plaintiff  ap- 
peals.     Attirmed. 

Ar^'^UHl  before  AEVI-:Y.  C.  .1..  and  ROBIN- 
SON, BRYAN,  IKVIXd.  :McSHERUY,  FOW- 
LER, PAGE,  and  ROBERTS,  JJ. 

Charles  Marshall  and  \Vm.  L.  Hod;;e.  for 
appellant.  Thos.  M.  Lanalian  and  Frank 
(Josnell,  for  appellees. 

McSIIERRY,  J.  The  declaration  in  this 
case  alleges  that  the  plaintiff  and  defend- 
ants entered  into  a  written  contract  vinder 
seal,  whereby  the  latter  agreed  to  pay  to 
the  former  a  salary  of  ^'tO  per  week,  paya- 
ble weekly,  as  compensation  for  the  s<n"vices 
of  the  plaintiff  as  cutter  in  the  business  of 
the  defendants,  and  that  the  plaintiff  aj^n-eed, 
in  consideration  of  said  salai'y.  to  devote  his 
time  and  attention  to  the  business  of  the  de- 
fendants, as  is  usual  in  conducting  a  mer- 
chant tailoring  business.  The  agreement 
fnrther  provided  that  the  contract  should 
coutimie  in  full  force  for  one  year  from  Feb- 
ruaiT  1,  1892,  to  Febniaiy  1,  1S98.  The 
declaration  also  avers  that  the  plaintiff  en- 
teretl  iuto  the  service  of  the  defendants  un- 
der the  above  contract,  and  performed  his 
duty  thereunder  until  April  5,  1892,  when 
the  defendants  reftised  to  periuit  him  to  per- 
fonu  his  part  of  said  contract,  or  to  pay  him 
the  salaiy  to  which  he  was  entitled  there- 
imder,  after  April  9.  1892.  It  further  al- 
leges that  the  plaintiff  has  always  been  ready 
and  willing  to  perform  his  part  of  the  con- 
tract, and  to  render  the  services  which  he 
agreed  thereby  to  perform,  and  has  always 
held  himself  in  readiness  and  oft"ered  to  per- 
form said  services  according  to  said  con- 
tract, but  that  the  defendants  have  refused 
to  permit  him  to  perform  the  contract  on 
his  part,  and  have  refused,  and  still  do  re- 
fuse, to  pay  him  the  .salary  of  $50  a  week, 
as  therein  provided,  since  April  9.  1S92.  It 
concludes  with  a  claim  by  the  plaintiff  "that 
there  is  due  and  unpaid  to  him  of  the 
aiuount  payable  to  him  tmder  said  contract 
the  sum  of  two  hundred  and  tifty  dollars, 
being  the  amount  of  sitid  weekly  salary  stip- 
ulated to  be  paid  by  said  contract  to  the  2."')th 
of  May,  1892." 

Among  the  defenses  relied  on  the  defend- 
ants pleaded  that  on  April  5,  1892,  they  dis- 
missed the  plaintiff  from  their  service,  and 
at  the  same  time  paid  him  all  wages  or 
salary  due  to  him  under  the  contract  down 
to  April  9tli,  the  end  of  the  week  terminat- 
ing four  days  after  his  dismissal:  that  nine 
days  after  said  dismissal  the  plaintiff  brought 
suit  against  the  defendants  before  a  Justice 


of  the  peace  upon  the  identical  contract  and 
cause  of  action  sued  on  in  the  case  at  bar. 
and  that  thereafter  the  plaintiff"  recovered 
judgment  in  that  suit  for  the  stim  of  $."»()  and 
costs,  which  judgm(>nt  was  fully  paid  and 
satisfied  by  the  defendants  before  the  pend- 
ing action  was  brought.  To  this  plea  the 
plaintiff  I'eplied  that  after  the  pretended  dis- 
missal of  him  by  the  defendants  he,  not- 
witlistanding  the  dismissal,  presented  and 
offered  himself  to  the  defendants  as  ready 
and  willing  to  perform  his  part  of  the  con- 
tract .set  forth  in  the  declaration,  and  did 
in  fact  continuously  so  offer  to  perform  the 
same,  and  that  the  suit  mentioned  in  said 
plea  was  a  suit  for  his  salary  for  one  week 
under  said  contract.  This  replication  was 
demurred  to.  The  Baltimore  city  court  sus- 
tained the  demurrer,  and  entered  judgment 
th(>reon  for  the  defendants.  The  plaintiff' 
thereupon  took  this  appeal  from  that  judg- 
ment. 

It  is  apparent  from  this  outline  of  the 
pleadings  that  the  wages  or  salary  now 
sought  to  be  recovered,  as  well  as  those  sued 
for  before  the  magistrate,  were  not  wages 
or  salary  which  had  been  actually  earned, 
but  were  wages  or  salary  for  work  and  la- 
bor that  the  plaimiff  was  ready  and  willing, 
but  had  not  been  allowed,  to  perform.  That 
the  contract  declared  on  was  broken  by  the 
defendants  when  they  dismissed  the  plaintiff 
is  conceded,  or,  at  least,  is  not  denied,  by 
the  pleadings.  For  that  breach  tln^  plaintiff" 
was  clearly  entitled  to  recover.  But  to  what 
extent,  and  how  often?  The  answer  to 
these  intiuiries  involves  at  the  very  outset 
an  examination  of  the  scope  of  the  agree- 
mcMit  set  forth  in  the  declaration,  as  to 
whether  it  is  an  entire  or  divisible  one: 
becatise,  if  it  b«  entire  and  indivisible,  and 
there  has  been  but  a  single  Ijreai-h,  but  ou" 
action  can  be  brouglit  therefor.  The  con- 
tract is  one  of  hiring.  Under  it  the  plain- 
tiff was  employed  as  a  cutter  at  .?.")(t  per 
week,  payable  weekly,  and  it  was  express- 
ly provided  that  this  employment  and  this 
weekly  payment  of  wages  should  continui' 
for  one  year.  The  duration  of  the  employ- 
ment was  as  much  an  integral  part  of  the 
agreement  as  the  stipulaticm  relating  to  tlie 
amount  of  the  compensation  and  the  stated 
l>eri(Mls  for  its  payment.  It  was  not  a  hiring 
by  the  week,  payable  weekly,  because  it  was 
explii'illy  declared  that  it  should  continue 
for  a  year.  It  was  not  52  separate,  inde- 
pendent c(mtracts,  but  one  indivisible  agree- 
ment, coveiing  the  period  of  a  year,  and 
making  i)rovisioii  for  the  weekly  payment 
of  Wiigcs.  The  consideration  for  the  plain- 
tiff's undertaking  was  the  defendants'  agree- 
ment to  pay  him  .$.50  a  week  and  to  employ 
him  as  a  cutter  for  one  year.  The  latter 
was  as  much  a  part  of  the  consider.! ti(jn 
promised  him  for  entering  the  service  of 
the  defendants  as  the  formt'r,  for  it  would 
be  wholly  unreasonable  to  assume,  as  any 
other  construction  must,  that  it  was  the  in- 


DAMAGES  IN  ACTIONS  AGAINST   EMPLOYER. 


321 


teutiou  of  the  parties  tliat  tlie  hiriug  should 
be  for  a  week,   deteruiinable  by  notice,   or 
tJse    merely    a    hiring    at    will,    as    it    un- 
doubtedly would  have  been  had  there  been 
no  stipulation  as  to  its  duration.      Iron  Co. 
V.     Carpenter,    G7    Md.    554,    11    Atl.     Rep. 
176.      The   good    sense    and    reasonableness 
of   the   particular    ease    must    always    guide 
and    govern    courts    in    determining    wheth- 
er   a    contract    is    divisible    or    entire.    Du- 
gan    V.    Anderson,    30  Md.    585;    Jones    v. 
Dunn,  3  Watts  &  S.  109;    Rol)inson  v.  Green, 
3    Mete.    (Mass.)   159.    Whether    a    contract 
must  be  sued  on  as  an  entirety  or  is  divisi- 
ble and  can  become  the  foundation  of  sep- 
arate suits  for  the  infraction  of  independent 
stipulations   depends   on  its   terms;    and,   in 
ordei"    to    arrive    at    a    correct   construction, 
due  regard  must  be  had  to  the  intention  of 
the   contracting  parties   as  revealed   by   the 
language  which  thej'  have  employed,  and  the 
subject-matter    to    which    it    has    reference. 
Broumel  v.  Rayuer,  68  I\Id.  47,  11  Atl.  Rep. 
>&S;    Brewster     v.     Frazier,     32     Md.     30S; 
Brantly,    Cont.    216.     Obviouslj-    the    appel- 
lant expected  and  conti'aoted  for  continuous 
employment  for  a  year,  and  not  for  a  week- 
ly or  still  more  precarious  hiring  at  will,  and 
the  appellees   contemplated  securing  a  per- 
manent  cutter   in    their   tailoring    business. 
Certainty  in  the  duration  of  the  employment, 
as  weU  as  exemption  from   the   annoyance 
incident  to  frequent  changes  in  such  an  em- 
ploy, were  manifestly  within  the  contempla- 
tion of  both  of  the  parties  to  the  contract 
when  it  was   entered  Into,   and   with   these 
considerations  before  them   it   seems   to   us 
clear  that  the  appellant  never  supposed  him- 
self only  hired  by  the  week  or  at  will,  and 
equally  clear  that  the  appellees  never  under- 
stood that  their  employe  was  at  liberty  to 
terminate    the    engagement   upon   a    week's 
notice.     The  hiring  was  for  a  year  and  the 
wages  were  payable  in  weekly  installments 
of  $50    each.     The    subsidiary    provision    as 
to  the  payment  of  the  wages  each  week  does 
not  split  up  the  conti-act  into  as  many  agi'eo- 
ments  as   there   were   payments   or    periods 
named  for  payments  to  be  made,  (Norrington 
v.    Wright,   115   U.    S.   188,   6   Sup.    Ct    Rep. 
12;)    nor  is  it  inconsistent  with  a  yearly  hu'- 
ing.   (Norton  v.   Cow-ell,   Go   Md.   302,   4  Atl. 
Rep.  408;  Fawcett  v.  Cash,  5  Barn.  &  Adol. 
908;)    for,  as  said  by  Lord  Keuyon  in  King 
V.  Birdbrooke,  4  Term  R.  245:    "Whether  the 
wages  be  to  be  paid  by  the  week  or  the  year 
can  make  no  alteration  in  the  dm*ation  of 
the  service  if  the  contract  were  for  a  year." 
The    contract   is,    then,    an   entire,    and   not 
a  divisible,  one.    It  does  not  consist  of  dis- 
tinct and  independent  subjects  which  admit 
of  being  separately  executed  and  closed.     A 
dismissal  during  the  year  was  consequently 
a  breach  of  the  contract  as  an  entiretj',  and 
fm-nished   the  party  not  in   default   with   a 
good   cause   of   action.     The   conti-act   being 
entire,   and   having   created   the   relation   of 
master  and  servant,  and  the  latter  having 
LAW  DAM.2d  Ed.— 21 


been,  as  averred  in  the  pleadings,   dismiss- 
ed   before    the   expiration    of    the    term    fur 
which  he  had   been   engaged,   wnat  redress 
was  open  to  him?     Obviously  but  one  reme- 
dy  for   the  recovery   of   the    whole  damage 
sustained   by   him.     In   Keedy    v.    Long,    71 
Md.   389,   18  Atl.   Rep.   704,  this  court  said: 
"A  servant  wrongfully  discharge<l  has  only 
two  remedies  open  to  him  at  law,  either  of 
Avhich  he  may  piu'sue  immediately  on  his  dis- 
charge.    First,  he  may  treat  the  contract  as 
continuing,  and  bring  a  special  action  against 
the  master  for  breakhig  it   by   discharging 
hijn,  and  this  remedy  he  may  pursue  wheth- 
er his  wages  are  paid  up  to  the  time  of  his 
discharge  or  not;    or,  secondly,  if  his  wages 
ai-e   not   paid   up   to    the    time    of   his   dis- 
charge, he  may  (reat  the  contract  of  hiring 
as  rescinded,  and  sue  liis  master  on  a  quan- 
tum  meruit   for  the   services  he  has  actually 
rendered.     These    two    alternative  remedies 
are  the  only  ones  open  to  him.    Mayne,   Dam. 
159.     Upon  a  quautinn  meruit  he  can  only 
recover   for  the  services   actually    rendered. 
Archard  v.  Hornor,  3  Car.  &  P.  349;  Smith  v. 
Hayward,  7  Adol.  &  E.  544.     In  an  action 
for  damages  for  a  breach   of  the   contract 
he  will  be  entitled  to  recover  the  actual  dam- 
ages  he   has   sustained,   in   addition    to    the 
wages  earned;    and  in  case  he  has  by  dili- 
gence been  imable  to  secure  other  employ- 
ment during  tha  entire  terra,  he  can  recover 
the   entire   wages,   less   the  amomit  he  has 
actually  earned  dm-ing  the  intcjim,   or   the 
amotmt  he   might  have  earned  by   the   ex- 
ercise of  proper  dihgence  in  seeking  for  em- 
ployment in  the  same  or  sijniiar  business. 
Wood,   Mast.   &  S.  249;    Mayne,   Dam.   158; 
Eldorton  v.  Emmens,  6  C.  B.  100;    Goodman 
v.  Pocock,  15  Q.  B.  576."    Jaffray  v.  King. 
34  Md.  217.    In  the  case  at  bar  the  plead- 
ings show  that  all  wages  earned  by  the  ap- 
pellant had  been  paid  to  him  in  full  up  to 
the  end  of  the  Aveek  during  Avhich  he  was 
dismissed.     Whc^u  he  brougiit  suit  before  the 
justice  of  the  peace  he  had  earned  no  wages 
which  had  not  been   paid  him,  for  he  had 
rendered  no  services  after  his  dismissal.     He 
was,  therefore,  at  that  time  in  no  position 
to  sue  upon  a  quantum  meruit  for  the  value 
of  services  actually  performed,  and  he  could 
only    recover    in    that    suit   damages   for    a 
breach  of  the  entire  contract,  unless  the  con- 
tract    was    divisible    into    52    independent 
agreements,  each  capable  of  being  separatcr 
ly  executed  and  closed.     His  wages  having 
beeii  paid  in  full  up  to  the  time  of  his  dis- 
missal, he  had  no  o])tion  as  to  the  remedies 
which  he   might  pm-sue.     He   was  confined 
to   an   action   for  the  recovery  of  damages 
which  he  had  sustained  by  a  breach  of  the 
contract,     because     successive     actions,     in- 
stituted for  the  recovery  of  fractions  of  the 
same  aggregate  damages,  cannot  be  support- 
ed.    His    suit    before    the    magistrate    was. 
whatever  it  purported  to  be,  a  suit  for  thi; 
breach  of  the  conti-act  of  hiring.     It  could 
have  been  for  nothing  else,  except  for  sen- 


322 


BREACH   OF   CONTRACTS   RESPECTING   PERSONAL   SERVICE. 


ices  uever  rendered,  tlie  value  of  wliioli  was 
measured  by  the  price  agi-eed  to  be  paid  for 
tliem  when  actually  performed.     There  was 
but  one  dismissal  and  but  one  breach,  and 
the  plaintiff  could  not  split  up  his  cause  of 
action,  recovering  a  part  of  liis  damag-es  in 
one   suit   and   the  remainder   afterwards  in 
other    suits    for    that    single    breach.    It    is 
an    ancient    and   familiar   rule    of   law    that 
only  one  action  can  be  maintained  for  the 
breach  of  an  entire  contract,  and  the  judg- 
ment obtamed  by  the  plaUititf  in  one  suit 
may  be  pleaded  in  bar  of  any  second  pro- 
reeding.     Sedg.    Dam.    224;    Dugan    v.    An- 
derson, 3G  Md.  5S4.    It  was  the  appellants 
plam  duty  to   include   all  that  belonged   to 
that  cause  of  action-that  one  breach-m  the 
first   suit,   so   that  one   proceeding   and   one 
recovery  should  settle  the  rights  of  the  par- 
ties.    It  would  be  at  his  own  risk  and  peril 
if   he   negligently    or    ignoi-antly    omitted    a 
part  of  what  might  properly  have  been  em- 
braced in  the   cause  of  action  in  the   first 
suit      Or,   as   expressed   by   Lord   Campbell 
in  Clossman  v.  Lacoste,  28  Eng.  Law  &  Eq. 
140,  "if  the  contract  is  entirely  broken,  and 
the' relation  of  employer  and  employed  put 
an  end  to,  I  agree  that  the  party  suing  ought 
to  allege  in  his  declaration  the  whole  grava- 
men that  he  suffers  by  such  breach  of  con- 
tract   and  tliat  he  may  recover  therein   aU 
the  damages  that  may  ensue  to  him  in  conse- 
nuence."    Again,   as   clearly  put  by   the   su- 
preme com-t  of  Ohio  in  James  v.  Allen  Co., 
44  Ohio  St.  226.   6  N.   E.  Rep.  24G:    "As  a 
result   of   tiie  authorities,    as   well   as   upon 
l)rinciple,    we   are   satisfied   that   in   such   a 
contract  as  the  one  in  the  case  at  bar,  where 
the  employe  is  wrongfully  dismissed,  but  all 
wages  actually  earned  up  to  that  time  are 
paid     the    only    action    the    employe    has. 
whether  he  brings  it  at  once  or  waits  until 
the  entire  period  of  time  has  expired,  is  an 
action  for  damages  for  the  breach  of  con- 
tract;   and    the    measure    of    damages    will 
be   the   loss   or   injury   occasioned    by   that 
breach,  and  one  recovery  upon  such  claim, 
whether  the  damages  be  denominated  'loss 
of  wages'  or  'damages  for  breach,'  is  a  bar 
to   a   future  recovery."    Wood,    Mast.    &    S. 
246. 

It  is  to  be  observed  that  the  case  at  bar  is 
distinguishable  from  a  class  of  cases  alluded 
to  in  Clossman  v.  Lacoste,  supra,  where, 
there  having  been  no  dismissal  of  the  serv- 
ant, the  only  breach  of  the  contract  con- 
sisted in  the  failure  of  the  master  to  pay, 
when  due,  the  wages  or  installments  of 
wages  actually  earned.  In  those  instances, 
the  contract  not  having  been  broken  by  the 
<lismissal  of  the  servant,  and  he  not  having 
been  prevented  from  performing  his  A.ork, 
and  the  relation  of  master  and  servant  still 
continuing,  an  action  on  the  contract  could 
be  maintained  to  recover  the  salary  or  wages 
«lu(>  for  a  past  stated  period.  Keedy  v.  Long, 
71  Md.  392.  IS  Atl.  Rep.  704.  But  a  dismiss- 
al of  the  servant,  or,  differently  stating  the 


same  thing,   a   refusal   to  allow   him    tu  cdii- 
tinue  to  work,  while  not  a  rescission  of  the 
contract,  is  a  breach  of  it  that  will  authorize 
a  recovery  of  damages  for  the  whole  injury 
which  the  servant  may  have  sustained.    And 
such   a   suit   may   be   instituted   though   the 
time  for  the  completion  of  the  service  has 
not   elapsed.     Keedy  v.    Long,   supra.     This 
conclusion   does   not  involve  an   application 
or  adoption   of  the   principle  laid   down    in 
Hochster  v.  De  Latour,  20  Eng.  Law  &  Eq. 
157.     The  law  of  the  case  just  cited  relates 
to  cases  where  there  is  a  precontract  for  fu- 
ture  services,   or   the  performance   of   some 
act  or  duty  at  a  future  period,  and   where 
performance  cannot  be  commenced,  and  was 
not  by  the  contract  contemplated,  until  that 
period    arrives,    and    where    the    promisor, 
prior  to  that  time,  announces  his  intention 
not  to  abide  by  the  contract.     But  that  is 
not  this  case,  where  performance  ■  had  been 
commenced,  and  the  plaintiff  was  prevented 
by  the  defendants  from  further  executing  it. 
But  it  is  insisted  the  pending  suit  is  not 
for  damages  for  dismissing  the  plaintiff,  but 
that  it  is  an  action  on  the  contract  to   re- 
cover the  plaintiff's  salary  for  the  five  weeks 
following  the  one  for  which  a  recovery  had 
been  had  before  the  justice  of  the  peace.    And 
the   right  to  recover   this   salary   as   salary, 
and  not  as  damages  for  a  breach  of  the  con- 
tract, is  based  upon  the  plaintiff's  readiness 
and    willingness   to   perform    his   work,    and 
not  upon   his   actual   performance  of   it;   in 
other  words,  he  seeks  to  recover  installments 
of    salary    for    work    which    he    never    per- 
formed, and  to  recover  them  merely  because 
he  was  w'illing  to  perform  it.  but  was  pre- 
vented from   doing  so.     As  thus  presented, 
under    a    contract    that    is    indivisible,    and 
which  covers  a  hiring  for  a  whole  year  at  a 
salary  payable  in  weekly  installments,  it  is  a 
claim   to   recover  for   constructive   services. 
Had  the  action  been  indebitatus  assumpsit, 
it  is   conceded  the  doctrine  of  constructive 
service  would  be  involved,  but,  as  the  suit 
is    on    an    express    contract    prescribing    tlie 
amount  of  each  installment  of  the  compensa- 
tion, it  is  urged  that  the  defendants  are  lia- 
ble for  the  stipidated  price  of  the  services 
tlie   plaintiff   agreed    to   perform,   but   never 
did  perform,    and  that  they   are  liable,    be- 
cause the  plaintiff  was  not  permitted  to  per- 
form them,  though  ready  and  willing  to  do 
so.    In  both  indebitatus  assumpsit  and  in  an 
action    on    an    express    contract    to    recover 
wages  for  services  which  have  not  been  pc^r- 
formed,  a  recovery  is  sought  for  the  amount 
that  the  plaintiff  woiUd  have  been  entitled 
to  recover  had  the  services  in  fact  been  ren- 
dered; and  such  recovery  is  sought,  not  be- 
cause the  services  have  been  rendered,  but 
because  the  plaintiff  was  ready  and  willing  to 
render  them,   and  the  defendant  prevented 
him.     In  both  instances,  therefore,  the  read- 
iness of  the  plaintiff  to  perform  and  the  re- 
fusal of  the  defendant  to  allow  a  perform- 
ance, constitute,   when  unearned  wages  are 


DAMAGES  IN  ACTIONS  AGAINST  EMPLOYER, 


323 


sued  for,  the  gi-ound  of  the  .actions,  though 
the  forms  ami  the  allegation's  of  the  plead- 
ings are  widely  different.  That  which  is 
sought  to  be  recovered  in  both  cases  is  the 
same  thing,  viz.  Avages  as  wages,  though  in 
the  one  case  it  is  under  the  allegation  of 
work  and  labor  done,  which  allegation  is  at- 
tempted to  be  su]iported  by  the  proof  of  a 
readiness  and  willingness  to  perform;  and  in 
the  other  it  is  under  an  allegation  of  a  re- 
fusal to  allow  that  work  to  be  done  which 
the  plaintiff  had  agreed  to  do,  and  continued 
ready  and  willing  to  do.  Salary  as  salary, 
definitely  fixed  and  agi-eed  to,  and  not  a  sxim 
of  money  as  unliquidated  damages  for  a 
broken  contract  of  hiring,  is  what  is  sued 
for  under  the  declaration  in  the  case  at  bar. 
It  is  a  suit  to  recover  wages,  though  no  serv- 
ices have  been  rendered  at  all,  and,  if  main- 
tainable in  that  form,  would  preclude  the 
defendants  from  showing  by  evidence  that 
the  plaintiff  could  have  secured  other  simTar 
€mploj'ment  during  the  time  covered  by  the 
contract;  becaiise,  if  wages,  distinctively  as 
wages,  can  be  recovered  under  such  condi- 
tions, instead  of  damages  for  a  wrongful 
discharge  or  dismissal,  they  must  be  re- 
covered as  specific,  ascertained  debts,  the 
amount  of  which  is  fixed  by  the  contract, 
and  is  in  no  way  subject  to  abatement  by 
circumstances  which  would  reduce  the  dam- 
ages in  a  suit  founded  on  a  refusal  by  the 
defendant  to  allow  the  plaintiff  to  perform 
his  part  of  an  indivisible  contract  of  hiring. 
In  other  words,  if  under  such  a  contract  the 
plaintiff  is  entitled  to  recover  wages  as 
wages  upon  a  mere  offer  to  perform,  he  must 
be  entitled  to  recover  just  precisely  the 
wages  named  in  the  contract,  even  though 
he  might  have  obtained  other  work  of  the 
same  kind,  at  the  same  price,  during  the 
period  for  which  he  claims  his  wages  luider 
the  contract.  This  would  be  recovering  for 
constructive  services.  That  doctrine  has 
been  altogether  repudiated,  both  in  England 
and  in  this  country.  Keedy  v.  Long,  71  Md. 
3S9,  18  Atl.  Rep.  704.  "The  doctrine  of  con- 
structive service  has,  in  England,  where  it 
had  its  origin,  been  repudiated,  and  the  law 
there  established  that  a  servant  wrongfully 
discharged  has  not  an  action  for  wages,  unless 
something  is  due  for  past  services  actually 
rendered;  and  as  to  any  other  claim  on  the 


contract  it  is  for  the  breach  of  it,  and  for 
his  damages  resulting  therefrom,  being  the 
ordinary  action  for  damages,  and  not  the 
common-law  action  of  indebitatus  assump- 
sit." James  v.  Allen  Co.,  supra;  Howard  v. 
Daly,  61  N.  Y.  3G2,— where  GandeU  v.  Pon- 
tigny,  4  Camp.  375,  Thompson  v.  Wood,  1 
Hilt.  96,  and  the  cases  in  Alabama,  Missis- 
sippi, and  Wisconsin  are  distinctly  disaftirm;'d, 
and  the  doctrine  of  constructive  service  de- 
clared to  be  "so  opposed  to  principle,  so 
clearly  hostile  to  the  great  mass  of  author- 
ities *  *  *  that"  it  could  not  be  accepted. 
We  hold,  then,  that  the  contract  declared  on 
is  entire  and  indivisible;  that  for  the  breach 
of  it  by  the  defendants  in  discharging  the 
plaintiff  before  the  expiration  of  the  year, 
or  in  refusing  to  allow  him  to  work,  a  right 
of  action  arose,  not  for  unearned  wages  or 
salary,  as  such,  but  for  damages  for  a  br.a'  h 
of  the  contract,  the  measvire  of  whi  h  damnges 
would  be  the  stipulated  salary  for  the  stipu- 
lated period  of  one  year,  less  the  amount 
the  plaintiff  actually  earned,  or  might,  by 
due  and  reasonable  dil'gence,  have  earned, 
after  his  dismissal,  (Jaft'ray  v.  King,  34  Md. 
223;)  that,  as  there  was  but  one  breach,  but 
one  action  could  be  maintained  therefor: 
that,  having  recovered  before  the  magistrate 
in  a  suit  founded  on  that  breach,— for  he 
eoidd  have  lawfidly  recovered  upon  no  other 
theory,— he  is  barred,  upon  the  satisfaction 
of  that  judgment,  from  again  sxiing  on  the 
same  contract,  because  he  could  have  re- 
covered in  one  action  all  the  damages  he  sus- 
tained, including  that  for  which  he  now 
sues;  and  that,  if  the  pending  action  be 
treated  as  a  suit  to  recover  for  installments 
of  salary  imder  the  contract,  no  se.'v'ces  hav- 
ing been  rendered  by  him,  it  must  fail,  be- 
cause the  services  were  never  rendered,  but 
were  constructive.  The  plaintiff  elected  to 
sue  before  a  justice  of  the  peace  for  a  por- 
tion of  the  amount  he  m'ght  have  recovered 
had  he  claimed  more  and  sued  in  a  different 
forum,  and  he  must  abide  the  result  of  that 
election.  He  is  not  at  liberty  to  spl't  up  h's 
cause  of  action  into  fragments,  and  succes- 
|ively  sue  for  each,  when  there  has  been  but 
one  breach  of  an  entire  and  indivisib'e  con- 
tract. As  we  agree  with  the  court  be''ow,  its 
judgment  will  be  affirmed.  .Judgment  af- 
firmed, with  costs  in  both  courts. 


324 


BREACH   OF   CONTRACTS   RESPECTING   PERSONAL   SERVICE. 


BOLAND  V.  GLENDALE  QUARRY  CO. 

(30  S.  W.  151,  127  Mo.  520.) 

Supreme  Court  of  Missouri,  Division  No.  2. 
March  IS.  1805. 

Appeal  from  St.  Louis  circuit  court;  D.  D, 
Fisher,  Judge. 

Action  by  James  Boland  against  tlie  Glen- 
dale  Quarry  Company  to  recover  damages 
for  wrongful  discharge.  From  a  judgment 
for   plaintiff,  defendant    appeals.     Affirmed. 

Chester  H.  Krum  and  Carl  Otto,  for  appel- 
lant.    W.  B.  Homer,  for  respondent 

GANTT,  P.  J.  The  plaintiff,  on  the  ISth 
of  January,  1890,  entered  into  a  written 
agreement  with  the  defendant,  whereby  he 
was  employed  by  defendant  as  superintend- 
ent of  its  quarries  and  stone  business  for  a 
period  of  three  years,  beginning  April  1, 
1890,  and  ending  March  31,  1893,  at  a  salary 
of  $2,000  for  the  first  year,  payable  in  month- 
ly installments  of  $166.66;  and  at  a  salary 
of  $2.2.30  for  the  second  year,  payable  in 
monthly  installments  of  $1ST..50;  and  at  a 
salary  of  $2,500  for  the  third  year,  at  $208.33 
per  month,— in  consideration  of  which  he 
was  to  devote  his  time,  labor,  and  exclusive 
attention  to  the  business  of  defendant,  and 
advance  its  interest.  Plaintiff  entered  upon 
his  duties  under  the  contract,  and  served  un- 
til May  9,  ISiU,  when  he  was  discharged. 
He  tendered  his  sei-vices,  but  defendant  re- 
fused to  accept  them  after  his  dismissal. 
He  commenced  this  action  on  the  10th  day  of 
September,  1892,  and  prayed  for  $5,000  dam- 
ages for  breach  of  his  contract.  Defendant, 
in  its  answer,  admits  the  contract,  and  denies 
eachand  everyother  allegation  in  the  petition. 
It  then  pleads  for  further  defense  that  plain- 
tiff did  not  faithfully  perform  his  duties, 
caused  defendant  much  loss,  and  was  dis- 
charged for  failure  to  properly  perform  his 
duties;  and  further,  that  since  his  discharge 
he  has  obtained  other  employment,  for  which 
he  has  received  more  than  he  claimed  from 
defendant.  A  reply  was  duly  filed.  The 
cause  was  tried  January  9  and  10,  1894,  and 
plaintiff  obtained  a  verdict  for  $2,984.25,  and 
judgment  therefor,  with  costs.  Defendant 
appeals. 

J..  The  court,  of  its  own  motion,  gave  the  fol- 
lowing instruction  on  the  measure  of  damages: 
■•The  court  instructs  the  jm-y  that,  if  they 
find  their  verdict  for  the  plaintiff,  they  will 
fix  their  verdict  for  the  whole  amount  that 
would  have  been  due  the  plaintiff  if  he  had 
continued  work  for  the  defendant  under  the 
contract  sued  upon  from  the  date  of  his  dis- 
cliarge  until  the  expiration  of  the  contract, 
after  allowing  credit  for  anything  which  the 
evidence  shows  plaintiff  may  have  earned 
from  services  rendered  to  others,  and  after 
allowing  a  further  credit  of  an  amount  equal 
to  what  the  jury  may  believe,  from  the  evi- 
dence, he  will  be  able  to  earn  between  now 
and  the  31st  day  of  March,  1893."  To  which 
said  action  of  the  court  defendant  then  and 


there  at  the  time  duly   excepted.     The  de- 
fendant asked.no  instruction  on  the  measure 
of  damages  whatever.     In  this  court,  coim- 
sel  for  defendant  have  assailed  the  instruc- 
tion, because  it  permitted  plaint' '"<'  to  recover 
for  the  whole  contract  period,  iv.>s  his  earn- 
ings up  to  the  date  of  the  trial  and  his  pro- 
spective earnings  to  the  end  of  the  contract. 
The  instruction  substantially  states  the  law 
as   it  has   been   settled   in   this   state   since 
Ream  v.  Watkins  (18.38)  27  Mo.  518.     That 
qase   was   followed  and   approved   in   Lam- 
bert V.  Hartshorne  (1877)  05  Mo.  549.    In  the 
last-mentioned  case  it  was  said:    "In  an  ac- 
tion for  wrongful  discharge,  brought  before 
the  expiration  of  the  term,  the  general  rule 
is  that  the  measure  of  damages  cannot  ex- 
ceed the  contract  price.     Neither  is  it  neces- 
sarily the  contract  price,   for,  as   stated  in 
Ream   v.    Watkins,    27   Mo.    516,   a  plaintiff 
may,    after   his   dismissal,    sue   and   recover 
judgment,  and  then  obtain  employment  else- 
where,  and   receive  for  the  residue  of   the 
term  as  much  or  more  than  by  the  broken 
contract  he  would  have  been  entitled  to  if 
he    had    served   his    time    out,    *    *    *    and 
therefore  the  measure  of  damages  is  a  ques- 
tion for  the  jury  under  all  the  circumstances 
of  the  case."    These  cases  were  again  quoted 
with  approval  in  Ehrlich  v.  Insurance  Co.,  88 
Mo.  257.     In  Pond  v.  Wyman,  15  Mo.  183, 
the  rule  and  the  reason  for  it  was  clearly 
stated:     "It    makes    the    contract    price    the 
measure  of  the   plaintiff's   recovery,   unless 
the  defendant,  by  evidence,  shows  that  the 
damage  actually  sustained  is  less  than  the 
price   agreed   upon.     This   we   regard   as    a 
sufficient  concession  to  the  person  who  has 
violated  a  contract  by  which  he  was  boimd 
to  pay  a  certain  price  to  another  for  services 
to  be  rendered.     The  plaintiff,  who  has  been 
prevented  by  the  act  of  the  defendant  from 
receiving    the    compensation    agreed    upon, 
when   iie   is  without  default,   is   entitled   to 
ask  a  full  indemnity;    and  the  onus  of  re- 
ducing the  recovery  is  properly  thrown  upon 
the  defendant.     It   is  almost   impossible   to 
lay  down   any  rule  for  this  reduction  that 
will  be  comprehensive  enough  to  embrace  all 
cases,    and    yet    be    particular    and    speoial 
enough  to  be  of  any  practical  utility.     To 
the    extent   that   the   time   of   the   plaintiff, 
which  would  be  required  to  perform  his  con- 
tract,   has    been    employed    in   business    not 
more  laborious,  and  equally  profitable,  it  is 
evident  that  he  would  not  be  injured  by  the 
violation  of  the  contract.     Yet,  to  give  him 
the  full  benefit  of  his  contract,  he  must  be 
entitled  to  the   difference   in  advantage,   in 
ease  and  profit,  between  the  service  he  was 
to  perform  and  the  business  substituted  for 
that  service,  although  his  whole  time  may 
have  been  employed."    In  Miller  v.  Shoe  Co., 
I  26  Mo.  App.  60,  the  St.  Louis  court  of  ap- 
peals reaffirms  the  rule  in  a  case  on  all  fours 
with  this.     Says  the  court:    "The  plaintiff's 
I   damage  for  breach  of  a  contract  of  employ- 
I  ment  for  a  time  certain  is,  prima  facie,  the 


DAMAGES  IN  ACTIONS  AGAINST   EMPLOYER. 


325 


i-oiitract  price  agroiMl  upon  for  his  services. 
It  is  uiiqiiestiouably  his  duty  to  use  reasona- 
ble efforts  to  fiud  other  similar  emploj-ment. 
if  he  can;    but  that  he  has  obtained   such 
employment,  or  that,   by  reasonable  efforts, 
he  mi.cht  have  obtained  it,  it  is  incumbent 
upon  the  defendant  to  show  in  mitigation  of 
damages.     Wood,   Mast.   &  S.   pp.  245,  246; 
Koenigkraemer  v.  Glass  Co.,  24'  Mo.  App.  124. 
In  this  case  the  trial  took  place  more  than 
six  months  after  the  discharge,  and  within 
one  and  one-half  months  prior  to  the  expira- 
tion  of  the   contract  time   of   sei'vice.     The 
plaintiff  had  given  evidence  in  full  of  his  ef- 
forts to  obtain  similar  employment,  after  his 
discharge,  and  prior  to  the  trial,  in  St.  Louis, 
Bloomington,   Chicago,   Rochester,  and    Cin- 
<?innati,  all  of  which  efforts  proved  unavail- 
ing.    He  was  thoroughly  competent  to  judge 
of  the  probabilities  as  to  whether  similar  ef- 
forts in  the  month  and  a  half  yet  remaining 
would  meet  with  any  success.     That  he  as- 
sumed the  burden'  of  proof  on  this  subject  is 
a  matter  of  which  the  defendant  is  in   no 
position  to  complain."    And  the  doctrine  has 
been  very  fully  gone  over  in  the  recent  case 
In  the  Kansas  City  court  of  appeals  of  Hal- 
^ey  V.   Meinrath,   54    Mo.    App.   341,    in  the 
following  language:    "The  suit  was  brought 
before  the  expiration  of  the  term  of  the  coU' 
tract  for  which  plaintiff  alleges  he  was  em- 
ployed.    A    servant    wrongfully    discharged 
may  treat  the  contract  of  hiring  and  service 
as    continuing,    and   bring   a   special    action 
against  the  master  for  breaking  it  by   dis- 
charging him;   and  this  remedy  he  may  pur- 
sue whether  his  wages  are  paid  up  to  the 
period    of   his    dischai-ge    or   not.     Ream   v. 
Watkins,  27  Mo.  516.     And  the  general  rule 
in  cases  of  this  kind  is  that  the  measure  of 
damages  cannot  exceed  the  contract  price; 
neither   is    it   necessarily   the   full    contract 
price,  for  it  may  be  that  the  plaintiff,  after 
his  dismissal,  may  sue  and  recover  a  judg- 
ment,   and    then    obtain    elsewhere    employ- 
ment, and  receive  for  the  residue  of  the  term 
much  more  than  by  the  contract  he  would 
have  been  entitled  to  if  he  had  served  out 
his  term.     The  damages  must  depend  upon 
the  kind  of  services  to  be  performed  and  the 
wages  to  be  paid,  and  allowance  should  bo 


made  for  the  time  that  would  probably  be 
lost  before  similar  employment  could  be  ob- 
tained. In  some  pursuits  it  may  be  almost 
certain  that  the  dismissal  of  a  person  at  a 
particular  season  will  throw  him  entirely  out 
of  employment  for  the  residue  of  the  year, 
whilst  in  other  pui-suits  similar  employment 
could  readily  be  obtained  elsewhere  on  bet- 
ter terms;  and  therefore  the  amount  of  the 
damages  is  a  question  for  the  jury  under  all 
circumstances.  Lambert  v.  Hartshorne,  65 
Mo.  551.  *  *  *  But  it  is  suggested  that 
the  plaintiff  could  only  recover  such  dam- 
ages as  had  resulted  at  the  time  of  the  com- 
mencement of  the  suit  This  is  an  error. 
The  plaintiff  was  entitled  to  such  damages 
as  accrued  up  to  the  expiration  of  his  term 
of  service  in  a  case  like  this,  where  the  dam- 
ages were  of  a  continuing  character.  Lally 
V.  Cantwell,  40  Mo.  App.  50;  Miller  v.  Shoe 
Co.,  26  Mo.  App.  61;  Ream  v.  Watkins,  su- 
pra; Lambert  v.  Hartshorne,  supra.  We 
must  indulge  every  presumption  in  support 
of  the  judgment."  Both  of  the  appellate 
courts  have  followed  the  decisions  of  this 
court,  and  a  rule  so  long  established  should 
not  be  disturbed  save  for  the  most  cogeut 
reasons.  No  error  was  committed  in  the  in- 
struction, upon  the  facts  in  evidence.  It 
gave  the  jury  full  latitude  to  allow  defend- 
ant every  deduction  to  which  it  could  be  en- 
titled under  the  law.  The  plaintiff's  evi- 
dence of  his  effort  to  obtain  other  employ- 
ment was  uncontradicted,  and  the  jury  cred- 
ited defendant  not  only  with  what  he  had 
received,  but  what  he  would  likely  receive  to 
the  end  of  the  term  of  service. 

2.  The  competency  of  plaintiff  was  conced- 
ed on  the  trial,  and  there  was  no  error  in 
assuming  a  fact  that  defendant  did  not  con- 
trovert in  his  pleadings.  Defendant  nowhere 
in  its  instructions  questioned  the  competency 
of  plaintiff.  It  tendered  the  sole  issue  that 
he  had  not  faithfully  performed  his  duties. 

3.  Appellant  has  not  pointed  out  any  error 
in  the  admission  or  exclusion  of  evidence. 
The  verdict  is  not  excessive,  and  is  evidently 
for  the  right  party.  The  judgment  is  af- 
firmed. 

BURGESS  and  SHERWOOD,  JJ.,  concur. 


326 


HKEACH   OF   CONTRACTS   RESPECTING   PERSONAL   SERVICE. 


STARK  V.  PARKER. 

(2  Pick.  267.) 

Supreme   Judicial    Couit   of   Massachusetts. 

Suffolk   and  Nantucket.    March 

Term,   1824. 

Exceptious  from  court  of  comniou  pleas, 
Suffolk  aud  Nantucket  counties;  Strong, 
Judge. 

Assumpsit  by  John  Stark  against  Thomas 
Parker  for  labour  performed  on  defendant's 
farm.  Judgment  for  plaintiff.  Defendant 
brings  exceptions.     Reversed. 

H.  H.  Fuller,  for  plaintiff.  B.  Sumner, 
for  defendant. 

LINCOLN,  J.     This  case  comes  before  us 
upon  exceptions  hied,  pursuant  to  the  stat- 
ute,  to  the  opinion   in  matter   of  law  of   a 
judge  of  the  court  of  common  pleas  before 
whom  the  action  was  tried  by  a  jury;    and 
we  are  thus  called  upon  to  revise  the  judg- 
ment  which   was   there   rendered.     The   ex- 
,  ceptions  present  a  precise  abstract  question 
i  of   law   for   consideration,    namely,    whether 
'  upon  an  entire  contract  for  a  term  of  serv- 
ice for  a  stipulated  sum,  and  a  part  perform- 
ance, without  any  excuse  for  neglect  of  its 
completion,  the  party  guilty  of  the   neglect 
can   maintain   an    action    against    the    party 
contracted    with,    for   an    apportionment    of 
the  price,  or  a  quantum  meruit,  for  the  serv- 
,  ices  actually  performed.     Whatever  may  be 
the  view  properly  taken  of  the  contract  be- 
tween the  parties  in  the  case  at  bar,  the  point 
upon  which  it  was  ruled  in  the  court  below 
embraced  but  this   single   proposition.     The 
direction    to    the   jury    was,    "that    although 
proved  to  them,  that  the  plaintiff  agreed  to 
serve  the  defendant  for  an  agreed  price  for 
a  year,  and  had  voluntarily  left  his  service 
before  the  expiration  of  that  time,  and  with- 
out the  fault  of  the  defendant,  and  against 
his  consent,   still  the  plaintifC  would  be  en- 
titled  to   recover   of   the   defendant,    in   this 
action,  a  sum  in  proportion  to  the  time  he 
had  served,  deducting   therefrom   such  sum 
(if  any)  as  the  jury  might  think  the  defend- 
ant had  suffered  by  having  his  service  de- 
serted."    If   this   direction   was   wrong,    the 
judgment  must  be  reversed,  and  the  case  sent 
to  a  new  trial,  in  which  the  diversity  of  con- 
struction given  to  the  character  and  terms 
of  the   contract  by  the  counsel   for  the  re- 
spective  parties   may  be  a   subject  for  dis- 
tinct consideration. 

It  cannot  but  seem  strange  to  those  who 
are  in  any  degree  familiar  with  the  funda- 
mental principles  of  law,  that  doubts  should 
ever  have  been  entertained  upon  a  question 
of  this  nature.  Courts  of  justice  are  emi- 
nently characterized  by  their  obligation  and 
office  to  enforce  the  performance  of  con- 
tracts, and  to  withhold  aid  and  countenance 
from  those  who  seek,  through  their  instru- 
mentality, impimity  or  excuse  for  the  viola- 
tion of  them.     Aud  it  is  no  less  repugnant 


to  the  well  established  rules  of  civil  juris- 
prudence, than  to  the  dictates  of  moral  sense,, 
that  a  party  who  deliberately  and  under- 
standingly  enters  into  an  engagement  and 
voluntarily  breaks  it,  should  be  permitted  to 
make  that  very  engagement  the  foundation 
of  a  claim  to  compensation  for  services  un- 
der it.  The  true .  ground  of  legal  demand 
in  all  cases  of  contracts  between  parties  is, 
that  the  pai-ty  claiming  has  done  all  which 
on  his  part  was  to  be  performed  by  the  terms 
of  the  contract,  to  entitle  him  to  enforce  the 
obligation  of  the  other  party.  It  is  not  suffi- 
cient that  he  has  given  to  the  party  con- 
tracted with,  a  right  of  action  against  him. 
The  ancient  doctrine  on  this  subject,  which 
was  carried  to  such  an  absurd  extent  as  to 
allow  an  action  for  the  stipulated  reward  for 
a  specified  service,  under  a  total  neglect  of 
performance,  leaving  the  other  party  to  his 
remedy  for  this  neglect  by  an  action  in  turn, 
has  been  long  since  wisely  exploded,  and  the 
more  reasonable  rule  before  stated,  in  late- 
decisions,  is  clearly  established. 

Upon  examining  the  numerous  authorities, 
which  have  been  collected  with  great  in- 
dustry by  the  counsel  for  the  plaintiff,  it 
will  be  found,  that  a  distinction  has  been 
uniformly  recognized  in  the  construction  of 
contracts,  between  those  in  which  the  obli- 
gation of  the  parties  is  reciprocal  and  inde- 
pendent, and  those  where  the  duty  of  the- 
one  may  be  considered  as  a  condition  pre- 
cedent to  that  of  the  other.  In  the  latter 
cases,  it  is  held,  that  the  performance  of  the^ 
precedent  obligation  can  alone  entitle  the 
party  bound  to  it,  in  his  action.  Indeed  the 
argument  of  the  counsel  in  the  present  case 
has  proceeded  entirely  upon  this  distinction, 
and  upon  the  petitio  principii  in  its  applica- 
tion. It  is  assumed  by  him,  that  the  service 
of  the  plaintiff  for  a  year  was  not  a  condi- 
tion precedent  to  his  right  to  a  proportion 
of  the  stipulated  compensation  for  that  entire 
term  of  service,  but  that  upon  a  .just  inter- 
pretation of  the  contract,  it  is  so  far  divisi- 
ble, as  that  consistently  with  the  terms  of  it, 
the  plaintiff  having  laboured  for  any  portion 
of  the  time,  may  receive  compensation  pro 
tanto.  That  this  was  the  intention  of  the 
parties  is  said  to  be  manifest  from  the  fact 
found  in  the  case,  that  the  defendant  from 
time  to  time  did  in  fact  make  payments  ex- 
pressly toward  this  service.  We  have  only 
to  observe  upon  this  point  in  the  case,  that 
however  the  parties  may  have  intended  be- 
tween themselves,  we  are  to  look  to  the  con- 
struction given  to  the  contract  by  the  court 
below.  The  jury  were  not  instructed  to  in- 
quire into  the  meaning  of  the  parties  in  mak- 
ing the  contract.  They  were  instructed  that 
if  the  contract  was  entire,  in  reference  alike 
to  the  service  and  the  compensation,  still  by 
law  it  was  so  divisible  in  the  remedy,  that 
the  party  might  recover  an  equitable  con- 
sideration for  his  labour,  although  the  en- 
gagement to  perform  it  had  not  been  fulfilled. 
The  contract  itself   Avas  not  discharged;    it 


DAMA(U-:S   IN   ACTIOXS  AGAINST  EMPLOYER. 


327 


was  considered  as  still  subsisting,  because 
tlie  loss  sustained  by  the  defendant  in  the 
breach  of  it  was  to  be  estimated  in  the  as- 
sessment of  damages  to  the  plaintiff.  A 
proposition  apparently  more  objectionable  in 
terms  can  hardly  be  stated,  and  if  supported 
at  all  it  must  rest  upon  the  most  explicit  au- 
thority. The  plaintiff  sues  in  indebitatus  as- 
sumpsit as  though  there  was  no  special  con- 
tract, and  yet  admits  the  existence  of  the 
contract  to  affect  the  amount  he  shall  recover. 
The  defendant  objects  to  the  recovery  of 
the  plaintiff  the  express  contract  which  has 
been  brol^en,'  and  is  himself  charged  with 
damages  for  the  breach  of  an  implied  one 
which  he  never  entered  into.  The  rule  that 
expressum  facit  cessare  tacitum  is  as  appli- 
cable to  this,  as  to  every  other  case.  If  the 
contract  is  entire  and  executory,  it  is  to  be 
declared  upon.  Where  it  is  executed  and  a 
mere  duty  to  pay  the  stipulated  compensa- 
tion remains,  a  general  count  for  the  money 
is  sufficient.  Numerous  instances  are  indeed 
to  be  found  in  the  books  of  actions  being 
maintained  where  the  specific  contract  has 
not  been  executed  by  the  party  suing  for 
compensation,,  but  in  every  case  it  will  be 
seen  that  the  precise  terms  of  the  contract 
have  been  first  held,  either  to  have  been  ex- 
pressly or  impliedly  waived,  or  the  non-exe- 
cution excused  upon  some  known  and  settled 
principle  of  law.  Such  w^as  the  case  in 
Burn  V.  Miller,  4  Taunt.  745,  Thorpe  v.  White, 
13  Johns.  5.3,  and  in  most  of  the  cases  cited 
by  the  plaintiff's  counsel  in  which  the  de- 
cision was  had  upon  considering  the  obliga- 
tion of  the  party  to  execute  the  contract, 
and  not  upon  the  construction  of  the  con- 
tract itself.  Nothing  can  be  more  unreason- 
able than  that  a  man  who  deliberately  and 
wantonly  violates  an  engagement,  should  be 
permitted  to  seek  in  a  court  of  justice  an 
indemnity  from  the  consequences  of  his 
voluntary  act,  and  we  are  satisfied  that  the 
law  will  not  allow  it. 

That  such  a  contract  as  is  supposed  in  the 
exceptions  before  us  expresses  a  condition  to 
be  performed  by  the  plaintiff  precedent  to 
his  right  of  action  against  the  defendant, 
we  cannot  doubt.  The  plaintiff  was  to  labour 
one  year  for  an  agreed  price.  The  money 
w^as  to  be  paid  in  compensation  for  the  serv- 
ice, and  not  as  a  consideration  for  an  engage- 
ment to  serve.  Otherwise,  as  no  precise  time 
was  fixed  for  payment,  it  might  as  well  be 
recovered  before  the  commencement  of  the 
labour  or  during  its  progress,  as  at  any  sub- 
sequent period.  While  the  contract  w^as  ex- 
ecutory and  in  the  course  of  execution  and  the 
plaintiff  was  in  the  employ  of  the  defendant, 
it  would  never  have  been  thought  an  action 
could  be  maintained  for  the  precise  sum  of 
(•onipeusation  agreed  upon  for  the  year.  The 
agreement  of  the  defendant  was  as  entire  on 
his  part  to  pay,  as  that  of  the  plaintiff  to 
serve.  The  latter  was  to  serve  one  year,  the 
former  to  pay  one  hundred  and  twenty  dol- 
lars.    Upon  the  construction  contended  for  by 


the  plaintiff's  counsel,  that  the  defendant  was 
to  pay  for  any  portion  of  the  time  in  which  tlic 
plaintiff"  should  labour,  in  the  same  propor- 
tion to  the  whole  sum  which  the  time  of  la- 
bour done  should  bear  to  the  time  agreed  for, 
there  is  no  rule  by  which  the  defendant's 
liability  can  be  determined.  The  plaintiff" 
might  as  well  claim  his  wages  by  the  month 
as  by  the  year,  by  the  week  as  by  the  month, 
and  by  the  day  or  hour  as  by  either.  Tlie 
responsibility  of  the  defendant  could  thus  be 
affected  in  the  manner  totally  inconsistent 
with  the  terms  of  his  agreement  to  pay  for  a 
year's  service  in  one  certain  and  entire 
amount.  Besides  a  construction  to  this  ef- 
fect is  utterly  repugnant  to  the  general  under- 
standing of  the  nature  of  such  engagements. 
The  usages  of  the  country  and  common  opin- 
ion upon  subjects  of  this  description  are  es- 
pecially to  be  regarded,  and  we  are  bound 
judicially  to  take  notice  of  that  of  which  no 
one  is  in  fact  ignorant.  It  may  be  safe  to 
affirm,  that  in  no  case  has  a  contract  in  the 
terms  of  the  one  under  consideration,  been 
construed  by  practical  men  to  give  a  right  to 
demand  the  agreed  compensation,  before  the 
performance  of  the  labor,  and  that  the  employ- 
er and  employed  alike  universally  so  under- 
stand it.  The  rule  of  law  is  in  entire  accord- 
ance with  this  sentiment,  and  it  would  be  a 
flagrant  violation  of  the  first  principles  of 
justice  to  hold  it  otherwise. 

The  performance  of  a  year's  service  was 
in  this  case  a  condition  precedent  to  the  obli- 
gation of  payment.  The  plaintiff  must  per- 
form the  condition,  before  he  is  entitled  to 
recover  anything  under  the  contract,  and  he 
has  no  right  to  renounce  his  agreement  and 
recover  upon  a  quantum  meruit.  The  cases 
of  McMillan  v.  Vanderlip,  12  Johns.  165,  Jen- 
nings V.  Camp,  13  Johns.  94,  and  Reab  v. 
Moor,  19  Johns.  337,  are  analogous  in  their 
circumstances  to  the  case  at  bar,  and  are  di- 
rectly and  strongly  in  point.  The  decisions 
in  the  English  cases  express  the  same  doc- 
trine (Waddington  v.  Oliver,  2  Bos.  «&  P.  [N. 
R.]  61;  Ellis  V.  Hamlen,  3  Taunt.  52);  and 
the  principle  is  fully  supported  by  all  the  ele- 
mentary writers. 

But  it  has  been  urged,  that  whatever  may 
be  the  principle  of  the  common  law,  and  the 
decisions  in  the  courts  in  New  York  on  this 
subject,  a  diJEferent  rule  of  construction  has 
been  adopted  in  this  commonwealth,  and  we 
are  bound  to  believe  that  such  has  sometimes 
been  the  fact,  from  the  opinion  of  the  learned 
and  respectable  judge  who  tried  this  cause, 
and  from  instances  of  similar  decisions  cited 
at  the  bar,  but  not  reported.  The  occasion  of 
so  great  a  departure  from  ancient  and  well- 
established  principles  cannot  well  be  under- 
stood. It  has  received  no  sanction  at  any 
time  from  the  judgment  of  this  court  within 
the  periods  of  our  Reports.  As  early  as  the 
second  volume  of  Massachusetts  Reports, 
page  147,  in  the  case  of  Faxon  v.  Mansfield, 
the  common-law  doctrine  in  relation  to  de- 
pendent  covenants   was   recognized   and   ap- 


328 


BREACH   OF   CONTRACTS   RESPECTING   PERSONAJJ   SERVICE. 


plied,  and  in  several  subsequent  cases  it  has 
l>een  repeated  and  uniformly  adhered  to. 
The  law  indeed  is  most  reasonalile  in  itself. 
It  denies  only  to  a  party  an  advantage  from 
his  own  wrong.  It  requires  him  to  act  justly 
by  a  faithful  performance  of  his  own  engage- 
ments, before  he  exacts  the  fulfilment  of  de- 
pendent obligations  on  the  part  of  otliers.  It 
will  not  admit  of  the  monstrous  absurdity, 
that  a  man  may  voluntarily  and  without  cause 
violate  his  agreement,  and  make  the  very 
breach  of  that  agreement  the  foundation  of 
an  action  which  he  could  not  maintain  under 
it.  Any  apprehension  that  this  rule  may  be 
abused  to  the  purposes  of  oppression,  by  hold- 
ing out  an  inducement  to  the  employer,  by 
unkind  treatment  near  the  close  of  a  term  of 
service,  to  drive  the  labourer  from  his  en- 
gagement, to  the  sacrifice  of  his  wages,  is 
wholly  groundless.  It  is  only  in  cases  where 
the  desertion  is  voluntary  and  without  cause 
on  the  part  of  the  labourer,  or  fault  or  con- 
sent on  the  part  of  the   employer   that   the 


principle  applies.  Wherever  there  is  a  rea- 
soualile  excuse,  the  law  allows  a  recovery.  'J\i 
say  that  this  is  not  sufficient  protection,  that 
an  excuse  may  in  fact  exist  in  countless 
secret  and  indescribable  circumstances, 
which  from  their  very  nature  are  not  sus- 
ceptible of  proof,  or  which,  if  proved,  the  law 
does  not  recognize  as  adequate,  is  to  require 
no  less  than  that  the  law  would  presume  what 
can  never  legally  be  established,  or  should 
admit  that  as  competent,  which  by  positive 
rules  is  held  to  be  wholly  immaterial.  We 
think  well  estabhshed  principles  are  not  thus 
to  be  shaken,  and  that  in  this  commonwealth 
more  especially,  where  the  important  business 
of  hiisbandry  leads  to  multiplied  engagements 
of  precisely  this  description,  it  should  least  of 
all  be  questioned,  that  the  labourer  is  worthy 
of  his  hire,  only  upon  the  performance  of  his 
contract,  and  as  the  reward  of  fidelity. 

The  judgment  of  the  court  of  common  pleas 
is  reversed,  and  a  new  trial  granted  at  the 
bar  of  this  court. 


DAMAGES  IN  ACTIONS  AGAINST   EMPLOYER. 


329 


BRITTON  V.  TURNER. 

(6  N.  H.  481.) 

Supreme   Court  of  New   Hampshire.    Cheshire. 
July  Term,  1834. 

Exceptions  from  Cheshire  county. 

Mr.  Wilson,  for  phiiutift'.  Mr.  Handerson, 
for  defendant. 

PARKER,  J.  It  may  be  assumed  that  the 
labor  performed  by  the  plaintiff,  and  for 
Avhich  he  seeks  to  recover  a  compensation  in 
this  action,  was  commenced  under  a  special 
contract  to  labor  for  the  defendant  the  term 
of  one  j^ear,  for  the  sum  of  one  hundred  and 
twenty  dollars,  and  that  the  plaintiff  has  la- 
bored but  a  portion  of  that  time,  and  has 
voluntarily  failed  to  complete  the  entire  con- 
tract. 

It  is  clear,  then,  that  he  is  not  entitled  to 
recover  upon  the  contract  itself,  because  the 
service,  which  was  to  entitle  him  to  the  sum 
agreed  upon,  has  never  been  performed. 

But  the  question  arises,  can  the  plaintiff, 
under  these  circumstances,  recover  a  reason- 
able sum  for  the  service  he  has  actually  per- 
formed, under  the  count  in  quantum  meruit? 
Upon  this,  and  questions  of  a  similar  nature, 
the  decisions  to  be  found  in  the  books  are  not 
easily  reconciled. 

It  has  been  held,  upon  contracts  of  this  kind 
for  labor  to  be  performed  at  a  specified  price, 
that  the  party  who  voluntarily  fails  to  fulfill 
the  contract  by  performing  the  whole  labor 
contracted  for,  is  not  entitled  to  recover  any 
thing  for  the  labor  actually  performed,  how- 
over  much  he  may  have  done  towards  the 
performance,  and  this  has  been  considered 
the  settled  rule  of  law  upon  this  subject. 
Stark  V.  Parker,  2  Pick.  267;  Faxon  v.  Mans- 
field, 2  Mass.  147;  McMillan  v.  Vanderlip,  12 
Johns.  165;  Jennings  v.  Camp,  13  Johns.  94; 
Reab  v.  Moor,  19  Johns.  337;  Lantry  v.  Parks, 
8  Cowen,  63;  Sinclair  v.  Bowles,  9  Barn.  & 
G.  92;  Spain  v.  Aruott,  2  Starkie,  256.  That 
such  a  rule  in  its  operation  may  be  very  un- 
equal, not  to  say  unjust,  is  apparent. 

A  party  who  contracts  to  perform  certain 
specified  labor,  and  who  breaks  his  contract 
in  the  first  instance,  without  any  attempt  to 
perform  it,  can  only  be  made  liable  to  pay 
the  damages  which  the  other  party  has  sus- 
tained by  reason  of  such  non  performance, 
which  in  many  instances  may  be  trifling; 
whereas  a  party  w^ho  in  good  faith  has  en- 
tered upon  the  performance  of  his  contract, 
and  nearly  completed  it,  and  then  abandoned 
the  further  performance, — although  the  other 
party  has  had  the  full  benefit  of  all  that  has 
been  done,  and  has  perhaps  sustained  no 
actual  damage,— is  in  fact  subjected  to  a  loss 
of  all  Avhich  has  been  performed,  in  the  na- 
ture of  damages  for  the  non  fulfillment  of  the 
remainder,  upon  the  technical  rule,  that  the 
i'ontract  must  be  fully  performed  in  order 
to  a  recovery  of  any  part  of  the  compensalion. 

By   the   operation   of   this  rule,    then,   the 


party  who  attempts  performance  may  bo 
placed  in  a  much  worse  situation  than  he 
Avho  wholly  disregards  his  contract,  and  the 
other  party  may  receive  much  more,  by  the 
breach  of  the  contract,  than  the  injury  which 
he  has  sustained  by  such  breach,  and  more 
than  he  could  be  entitled  to  were  he  seeking 
to  recover  damages  by  an  action. 

The  case  before  us  presents  an  illustration. 
Had  the  plaintiff  in  this  case  never  entered 
upon  the  performance  of  his  contract,  the 
damage  could  not  probably  have  been  great- 
er than  some  small  expense  and  trouble  in- 
curred in  procuring  another  to  do  the  labor 
which  he  had  contracted  to  perform.  But 
having  entered  upon  the  performance,  and 
labored  nine  and  a  half  months,  the  value  of 
which  labor  to  the  defendant  as  found  by  the 
jury  is  .f;95,  if  the  defendant  can  succeed  in 
this  defence,  he  in  fact  receives  nearly  five 
sixths  of  the  value  of  a  whole  year's  labor, 
by  reason  of  the  breach  of  contract  by  the 
plaintiff',  a  sum  not  only  utterly  disproportion- 
ate to  any  probable,  not  to  say  possible  dam- 
age which  could  have  resulted  from  the  neg- 
lect of  the  plaintiff  to  continue  the  remain- 
ing two  and  a  half  months,  but  altogether 
beyond  any  damage  which  could  have  been 
recovered  by  the  defendant,  had  the  plaintiff 
done  nothing  towards  the  fulfilment  of  his 
contract. 

Another  illustration  is  furnished  in  Lantry 
v.  Parks,  8  Cow.  83.  There  the  defendant 
hired  the  plaintiff  for  a  year,  at  ten  dollars 
per  month.  The  plaintiff  worked  ten  and  a 
half  months,  and  then  left  saying  he  would 
work  no  more  for  him.  This  was  on  Satur- 
day. On  Monday  the  plaintiff  returned  and 
offered  to  resume  his  work,  but  the  defendant 
said  he  would  employ  him  no  longer.  The 
court  held  that  the  refusal  of  the  defendant 
on  Saturday  w^as  a  violation  of  his  contract, 
and  that  he  could  recover  nothing  for  the  la- 
bor performed. 

There  are  other  cases,  however,  in  which 
principles  have  been  adopted  leading  to  a  dif- 
ferent result.  It  is  said,  that  where  a  party 
contracts  to  perform  certain  work,  and  to 
furnish  materials,  as,  for  instance,  to  build  a 
house,  and  the  work  is  done,  but  with  some 
variations  from  the  mode  prescribed  by  the 
contract,  yet  if  the  other  party  has  the  bene- 
fit of  the  labor  and  materials  he  should  be 
bound  to  pay  so  much  as  they  are  reason- 
ably worth.  2  Starkie,  Ev.  97,  98;  Hayward 
V.  Leonard,  7  Pick.  181;  Smith  v.  First  Cong. 
Meeting  House  in  Lowell,  8  Pick.  178;  Jewell 
V.  Schroeppel,  4  Cow.  564;  Hayden  v.  Inhab- 
itants of  Madison,  7  Greenl.  78;  Bull.  N.  P. 
139;  4  Bos.  &  P.  355;  Linningdale  v.  Liv- 
ingston, 10  Johns.  36;  Jennings  v.  Camp,  13 
Johns.  97;   7  East,  479. 

A  different  doctrine  seems  to  have  been 
holden  in  Ellis  v.  Hamlen,  3  Taunt.  52.  and 
it  is  apparent,  in  such  cases,  that  if  the  house 
has  not  been  built  in  the  manner  specified  in 
the  contract,  the  work  has  not  been  done. 


330 


BREACH   OF   CONTRACTS   RESPECTING    PERSON AL    SERVICE. 


The  party  bas  no  more  performed  what  lie 
contracted  to  perform,  than  he  who  has  con- 
tracted to  labor  for  a  certain  period,  and 
failed  to  complete  the  time. 

It  is  in  truth  virtually  conceded  in  such 
cases  that  the  work  has  not  been  done,  for  if 
it  had  been,  the  party  performiug  it  would 
be  entitled  to  recover  upon  the  contract  itself, 
which  it  is  held  he  cannot  do. 

Those  cases  are  not  to  be  distinguished,  in 
principle,  from  the  present,  unless  it  be  in 
the  circumstance  that  where  the  party  has 
contracted  to  furnish  materials,  and  do  cer- 
tain labor,  as  to  build  a  house  in  a  specifled 
manner,  if  it  is  not  done  according  to  the  con- 
tract, the  party  for  whom  it  is  built  may  re- 
fuse to  receive  it,— elect  to  take  no  benefit 
from  what  has  been  performed;  and  there- 
fore if  he  does  receive,  he  shall  be  bound  to 
pay  the  value,  whereas  in  a  contract  for  la- 
bor, merely,  from  day  to  day,  the  party  is 
continually  receiving  the  benefit  of  the  con- 
tract under  an  expectation,  that  it  will  be 
fulfilled,  and  cannot,  upon  the  breach  of  it, 
have  an  election  to  refuse  to  receive  what  hiis 
been  done,  and  thus  discharge  himself  from 
payment. 

But  we  think  this  difference  in  the  nature  of 
the  coDtracts  does  not  justify  the  application 
of  a  different  rule  in  relation  to  them.  The 
party  who  contracts  for  labor  merely,  for  a 
certain  period  does  so  with  full  knowledge 
that  he  must,  fi-om  the  nature  of  the  case, 
be  accepting  part  performance  from  day  to 
day,  if  the  other  party  commences  the  per- 
formance, and  with  knowledge  also  that  the 
other  ma:,  eventually  fail  of  completing  the 
entire  term. 

If  under  such  circumstances  he  actually  re- 
ceives a  benefit  from  the  labor  performed, 
over  and  above  the  damage  occasioned  by  the 
failure  to  complete,  there  is  as  much  reason 
why  he  should  pay  the  reasonable  worth  of 
what  has  been  done  for  his  benefit,  as  the«e 
is  when  he  enters  and  occupies  the  house 
which  has  been  built  for  him,  but  not  accord- 
ing to  the  stipulations  of  the  contract,  and 
which  he  perhaps  enters,  not  because  he  is 
satisfied  with  what  has  been  done,  but  be- 
cause circumstances  compel  him  to  accept  it 
such  as  it  is,  that  he  should  pay  for  the  value 
of  the  house. 

Where  goods  are  sold  upon  a  special  con- 
tract as  to  their  nature,  quality,  and  price, 
and  have  been  used  before  their  inferiority 
has  been  discovered,  or  other  circumstances 
have  occurred  which  have  rendered  it  im- 
practicable or  inconvenient  for  the  vendee  to 
rescind  the  contract  in  toto,  it  seems  to  have 
been  the  practice  formerly  to  allow  the  ven- 
dor to  recover  the  stipulated  price,  and  the 
vendee  recovered  by  a  cross  action  damages 
for  the  breach  of  the  contract.  "But  accord- 
ing to  the  later  and  more  convenient  prac- 
tice, the  vendee  in  such  case  is  allowed,  In 
an  action  for  the  price,  to  give  evidence  of 
the  inferiority  of  the  goods  in  reduction  of 


damages,  and  the  plaintiff  who  has  bn)keu' 
his  contract  is  not  entitled  to  recover  more 
than  the  value  of  the  benefits  which  the  de- 
fendant has  actually  derived  from  the  goods;.^ 
and  where  the  latter  has  derived  no  benefit, 
the  plaintiff  cannot  recover  at  all."  2  Starkie, 
Ev.  G40,  042;  Okell  v.  Smith,  1  Starkie,  107. 
So,  where  a  person  contracts  for  the  pur- 
chase of  a  quantity  of  merchandise,  at  a  cer- 
tain price,  and  receives  a  delivery  of  part 
only,  and  he  keeps  that  part,  without  any 
offer  of  a  return,  it  has  been  held  that  he- 
must  pay  the  value  of  it.  Shipton  v.  Casson, 
5  Barn.  &  C.  378;  Com.  Dig.  tit.  "Action" 
(F);  Barker  v.  Sutton,  1  Camp.  55,  note.  A 
different  opinion  seems  to  have  been  enter- 
tained, Waddiugton  v.  Oliver,  2  Bos.  &  P. 
(N.  R.)  61;  and  a  different  decision  was  had. 
Walker  v.  Dixon,  2  Starkie,  281. 

There  is  a  close  analogy  between  all  these 
classes  of  cases,  in  which  such  diverse  deci- 
sions have  been  made.  If  the  party  who  has 
contracted  to  receive  merchandise,  takes  a 
part  and  uses  it,  in  expectation  that  the- 
whole  will  be  delivered,  which  is  never  done, 
there  seems  to  be  no  greater  reason  that  he- 
should  pay  for  what  he  has  received,  than 
there  is  that  the  party  who  has  received  labor, 
in  part  under  similar  circumstances,  should 
pay  the  value  of  what  has  been  done  for  his 
benefit. 

It  is  said,  that  in  those  cases  where  the 
plaintiff  has  been  permitted  to  recover  there 
was  an  acceptance  of  what  had  been  done. 
The  answer  is,  that  where  the  contract  is 
to  labor  from  day  to  day,  for  a  certain 
period  as  it  is  performed,  and  although  the 
other  may  not  eventually  do  all  he  has  con- 
tracted to  do,  there  has  been,  necessarily,. 
an  acceptance  of  what  has  been  done  in  pur- 
suance of  the  contract,  and  the  party  must 
have  understood  AA'hen  he  made  the  contract 
that  there  was  to  be  such  acceptance. 

If  then  the  party  stipulates  in  the  outset 
to  receive  part  performance  from  time  to 
time,  with  a  knowledge  that  the  whole  may 
not  be  completed,  we  see  no  reason  why  he 
shotdd  not  equally  be  holden  to  pay  for  the- 
amoiint  of  value  received,  as  where  he  after- 
wards takes  the  benefit  of  what  has  been 
done,  with  a  knowledge  that  the  whole  which 
was  contracted  for  has  not  been  performed. 
In  neither  case  has  the  contract  been  per- 
formed. In  neither  can  an  action  be  sus- 
tained on  the  original  contract.  In  both  the 
party  has  assented  to  receive  what  is  done. 
The  only  difference  is,  that  in  the  one  case 
the  assent  is  prior,  with  a  knowledge  that 
all  may  not  be  performed,  in  the  other  it  is 
subsequent,  with  a  knowledge  that  the  whole 
has  not  been  accomplished. 
^-  We  have  no  hesitation  in  holding  that  the 
same  rule  should  be  applied  to  both  classes 
of  cases,  especially,  as  the  operation  of  the 
rule  will  be  to  make  the  party  who  has 
failed  to  fulfill  his  contract,  liable  to  .such 
amount  of  damages  as  the  other  party  has. 


DAMAGES  IN  ACTIONS  AGAINST  EMPLOYER. 


331 


sustained,  instead  of  subjecting  him  to  an 
entire  loss  for  a  partial  failure,  and  thus 
making  the  amount  received  in  many  cases 
wholly  disproportionate  to  the  injury.  1 
Saund.  320c;    2  Starlcie.  Ev.  643. 

It  is  as  "hard  upon  the  plaintiff  to  pre- 
clude him  from  recovering  at  all,  because  he 
has  failed  as  to  part  of  his  entire  imdertak- 
ing,"  where  his  contract  is  to  labor  for  a 
certain  period,  as  it  can  be  in  any  other  de- 
scription of  contract,  provided  the  defendant 
has  received  a  benefit  and  value  from  the 
labour  actually  performed. 

We  hold  then,  that  where  a  party  under- 
takes to  pay  upon  a  special  conti-act  for  the 
performance  of  labor,  or  the  furnishing  of 
materials,  he  is  not  to  be  charged  upon  such 
.special  agreement  until  the  money  is  earned 
according  to  the  termg  of  it;  and  where  the 
parties  have  made  an  express  contract  the 
law  will  not  imply  and  raise  a  contract  dif- 
ferent from  that  which  the  parties  have  en- 
tered into,  except  upon  some  farther  trans- 
action between  the  parties. 

In  case  of  a  failure  to  perform  such  special 
contract,  by  the  default  of  the  party  con- 
tracting to  do  the  service,  if  the  money  is 
not  due  by  the  terms  of  the  special  agreement 
he  is  not  entitled  to  r-ecover  for  his  labour, 
or  for  the  materials  furnished,  imless  the 
other  party  receives  what  has  been  done,  or 
furnished,  and  upon  the  whole  case  derives  a 
benefit  from  it.  Taft  v.  Inhabitants  of  Mon- 
tague, 14  Mass.  282;    2  Starkie,  Ev.  644. 

But,  if,  where  a  contract  is  made  of  such 
a  character,  a  party  actually  receives  labor 
or  materials,  and  thereby  derives  a  benefit 
and  advantage,  over  and  above  the  damage 
which  has  resulted  from  the  breach  of  the 
contract  by  the  other  party,  the  labor  actu- 
allj^  done,  and  the  value  received,  furnish  a 
new  consideration,  and  the  law  thereupon 
raises  a  promise  to  pay  to  the  extent  of  the 
reasonable  worth  of  such  excess.  This  may 
be  considered  as  making  a  new  case,  one  not 
Avithin  the  original  agreement,  and  the  party 
is  entitled  to  "recover  on  his  new  case,  for 
the  work  done,  not  as  agreed,  but  yet  ac- 
cepted by  the  defendant."     1  Dane,  Abr.  224. 

If  on  such  failure  to  perform  the  whole,  the 
nature  of  the  contract  be  such  that  the  em- 
ployer can  reject  what  has  been  done,  and 
refuse  to  receive  any  benefit  from  the  part 
performance,  he  is  entitled  so  to  do,  and  in 
such  case  is  not  liable  to  be  charged,  unless 
he  has  before  assented  to  and  accepted  of 
what  has  been  done,  however  much  the  other 
party  may  have  done  towards  the  perform- 
ance. He  has  in  such  case  received  nothing, 
and  having  contracted  to  receive  nothing  but 
the  entire  matter  contracted  for,  he  is  not 
l>onnd  to  pay,  because  his  express  promise  Avas 
only  to  pay  on  receiA'ing  the  whole,  and  hav- 
ing actually  received  nothing  the  law  can- 
not and  ought  not  to  raise  an  implied  prom- 
ise to  pay.  But  where  the  party  receives 
value,  takes  and  uses  the  materials,   or  has 


advantage  from  the  labor,  he  is  liable  to  pay 
the  reasonable  worth  of  Avhat  he  has  re- 
ceived. Farnsworth  v.  Garrard,  1  Camp.  38. 
And  the  rule  is  the  same  Avhether  it  was 
received  and  accepted  by  the  assent  of  the 
party  prior  to  the  breach,  under  a  contract  by 
Avhich,  from  its  nature,  he  was  to  receive 
labor,  from  time  to  time  until  tht>  completion 
of  the  whole  contract:  or  Avhether  it  Avas 
receiA'ed  and  accepted  by  an  assent  subse- 
quent to  the  performance  of  all  Avhich  was  in 
fact  done.  If  he  received  it  imder  such  cir- 
cumstances as  precluded  him  from  rejecting 
it  afterwards,  that  does  not  alter  the  case; 
it  has  still  been  received  by  his  assent. 

In  fact,  we  think  the  technical  reasoning, 
that  the  performance  of  the  Avhole  labor  is 
a  condition  precedent,  and  the  right  to  re- 
cover anything  dependent  upon  it;  that,  the 
contract  being  entire,  there  can  be  no  ap- 
portionment; and  that,  there  being  an  ex- 
press contract,  no  other  can  be  implied,  even 
upon  the  subsequent  performance  of  ser- 
vice,—is  not  properly  applicable  to  this  spe- 
cies of  contract,  where  a  beneficial  service 
has  been  actually  performed;  for  we  have 
abundant  reason  to  believe,  that  the  general 
understanding  of  the  community  is,  that  the 
hired  laborer  shall  be  entitled  to  compensa- 
tion for  the  service  actually  performed, 
though  he  do  not  continue  the  entire  term 
contracted  for,  and  such  contracts  must  be 
presumed  to  be  made  with  reference  to  that 
understanding,  unless  an  express  stipulation 
shows  the  contrary. 

Where  a  beneficial  service  has  been  per- 
formed and  received,  therefore,  under  con- 
tracts of  this  kind,  the  mutual  agreements 
cannot  be  considered  as  going  to  the  whole 
of  the  consideration,  so  as  to  make  them 
mutual  conditions  the  one  precedent  to  the 
other,  without  a  specific  proviso  to  that  ef- 
fect. Boone  v.  Eyre,  1  H.  Bl.  273,  note; 
Campbell  v.  Jones,  6  Term  R.  570;  Ritchie 
V.  Atkinson.  10  East,  295;  Burn  v.  Miller, 
4  Taunt.  745. 

It  is  easy,  if  parties  so  choose,  to  provide 
by  an  express  agreement  that  nothing  shall 
be  earned,  if  the  laborer  leaA^es  his  employ- 
er without  haA'ing  performed  the  whole  ser- 
vice contemplated,  and  then  there  can  be  no 
pretence  for  a  recovery  if  he  volutarily  de- 
serts the  service  before  the  expiration  of  the 
time. 

The  amount,  however,  for  Avhicb  the  em- 
ployer ought  to  be  charged,  where  the  la- 
borer abandons  his  contract,  is  only  the  rea- 
sonable worth  or  the  amount  of  advantage 
he  receives  upon  the  whole  transaction 
(Wadleigh  v.  Sutton,  6  N.  H.  1.5);  and,  in 
estimating  the  A'alue  of  the  labor,  the  con- 
tract price  for  the  service  cannot  be  ex- 
ceeded (Hayden  v.  Inhabitants  of  Madison, 
7  Greenl.  78;  Dubois  v.  Canal  Co.,  4  Wend. 
285;    Koon  v.  Greenman,  7  Wend.  121). 

If  a  person  makes  a  contract  fairly  he  is 
entitled  to  have  it  fully  performed;    and  if 


332 


BREACH   OF   C0NTRAC5TS   RESPECTING   PERSONAL   SERVICE. 


this  is  not  done  be  is  entitled  to  damages. 
He  may  maintain  a  suit  to  recover  the 
amount  of  damage  sustained  by  the  non 
performance. 

The  beuelit  and  advantage  which  the  par- 
ty takes  by  the  labor,  therefore,  is  the 
amount  of  value  which  he  receives,  if  any, 
after  deducting  the  amount  of  damage;  and 
if  he  elects  to  put  this  in  defence  he  is 
entitled  so  to  do,  and  the  implied  promise 
which  the  law  will  raise,  in  such  case,  is 
to  pay  such  amount  of  the  stipulated  price 
for  the  Avhoie  labor,  as  remains  after  de- 
ducting what  it  would  cost  to  procure  a 
completion  of  the  residue  of  the  service,  and 
also  any  damage  whieh  has  been  sustained 
by  reason  of  the  non  fumiment  of  the  con- 
tx'act. 

If  in  such  case  it  be  found  that  the  dam- 
ages are  equal  to  or  greater  than  the  amount 
of  the  labor  performed,  so  that  the  employer, 
having  a  right  to  the  full  performance  of 
the  contract,  has  not  upon  the  whole  case 
received  a  beneficial  service,  the  plaintiff 
cannot  recover. 

This  rule,  by  binding  the  employer  to 
pay  the  value  of  the  service  he  actually  re- 
ceives, and  the  laborer  to  answer  in  dam- 
ages where  he  does  not  complete  the  entire 
contract,  will  leave  no  temptation  to  the 
former  to  drive  the  laborer  from  his  service, 
near  the  close  of  his  term,  by  ill  treatment, 
in  order  to  escape  from  payment;  nor  to 
the  latter  to  desert  his  service  before  the 
stipulated  time,  without  a  sufficient  reason; 
and  it  will  in  most  instances  settle  the  whole 
controversy  in  one  action,  and  prevent  a  mul- 
tiplicity of  suits  and  cross  actions. 

There  may  be  instances,  however,  where 
the  damage  occasioned  is  much  greater  than 
the  value  of  the  labor  performed,  and  if  the 
party  elects  to  permit  himself  to  be  charged 
for  the  value  of  the  labor,  without  interpos- 
ing the  damages  in  defence,  he  is  entitled 
to  do  so,  and  may  have  an  action  to  recover 


his  damages  for  the  non-performance  what- 
ever, they  may  be.  Crowninshield  v.  Rob- 
inson, 1  Mason,  93,  Fed.  Cas.   No.  3,451. 

And  he  may  commence  such  action  at  any 
time  after  the  contract  is  broken,  notwith- 
standing no  suit  has  been  instituted  against 
him;  but  if  he  elects  to  have  the  damages 
considered  in  the  action  against  him,  he 
must  1)e  understood  as  conceding  that  they 
are  not  to  be  extended  beyond  the  amount 
of  what  he  has  received,  and  he  cannot  af- 
terwards sustain  an  action  for  farther  dam- 
ages. 

Applying  the  principles  thus  laid  down,  to 
this  case,  the  plaintiff  is  entitled  to  judg- 
ment on  the  verdict.  The  defendant  sets 
up  a  mere  breach  of  the  contract  in  defence 
of  the  action,  but  this  cannot  avail  him. 
He  does  not  appear  to  Jiave  offered  evidence 
to  show  that  he  was  damnified  by  such 
breach,  or  to  have  asked  that  a  deduction 
should  be  made  upon  that  account.  The 
direction  to  the  jury  was  therefore  correct; 
that  the  plaintiff  was  entitled  to  recover  as 
much  as  the  labor  performed  was  reason- 
ably worth,  and  the  jury  appeared  to  have 
allowed  a  pro  rata  compensation,  for  the 
time  which  the  plaintiff  labored  in  the  de- 
fendant's service.  As  the  defendant  has  not 
claimed  or  had  any  adjustment  of  damages, 
for  the  breach  of  the  contract,  in  this  action, 
if  he  has  actually  sustained  damage  he  is 
still  entitled  to  a  suit  to  recover  the  amount. 

Whether  it  is  not  necessary,  in  cases  of 
this  kind,  that  notice  should  be  given  to  the 
employer  that  the  contract  is  abandoned, 
with  an  offer  of  adjustment  and  demand  of 
payment;  and  whether  the  laborer  must  not 
wait  until  the  time  when  the  money  would 
have  been  due  according  to  the  contract, 
before  commencing  an  action  (2  Bos.  &  P. 
[N.  R.]  01),  are  questions  not  necessary  to 
be  settled  in  this  case,  no  objections  of  that 
nature  having  been  taken  here. 

Judgment  on  the  verdict 


DAMAGES  IN  ACTIONS  AGAINST  EMPLOYE. 


m'6 


SWIFT  V.  HARKIMAN. 

(30  Vt.  607.) 

Supreme   Court  of  Vermont.      Orange.      March 
Term,  1S5S. 

Assumpsit  for  the  breach  of  a  contract  by  the 
defendant,  to  carry  on  the  plaintiffs  saw  mill. 
The  defendant  tiled  a  plea  in  offset,  but  this 
plea  was  not  filed  so  early  as  was  required  by 
the  rules  of  the  court  where  the  cause  was  tried. 
After  this  plea  was  filed,  and  before  any  objec- 
tions had  been  made  to  it  by  the  plaintiff,  the 
cause  was  referred  by  the  consent  of  the  par- 
ties, and  tried  by  the  referees,  and  at  the  hear- 
ing before  them  the  plaintiff  objected  to  the 
defendant's  demand  in  offset,  among  other 
reasons,  upon  the  ground  that  the  plea  in  offset 
was  not  filed  in  season.  The  referees,  however, 
considered  the  defendant's  claim  in  offset, 
which  was  for  his  labor  and  earnings  during 
the  time  he  carried  on  the  mill,  and  reported 
the  facts  in  the  case,  which  are  sufficiently  set 
forth  in  the  opinion  of  the  court.  They  found 
that  the  plaintiff'  was  entitled  to  recover  of  the 
defendant  fifteen  dollars  for  the  breach  of  the 
contract  declared  on,  and  that  the  defendant 
was  entitled  to  recover  of  the  plaintiff,  upon 
his  claim  in  offset,  the  sum  of  thirtj'-two  dollars 
and  ninety-two  cents,  and  they  accordingly  re- 
ported that  the  defendant  recover  of  the  plain- 
tiff' seventeen  dollars  and  ninety-two  cents  (be- 
ing the  difference  between  the  defend- 
ant's claim  above  stated,  *and  the  plain-  *608 
tiff's  damages  by  reason  of  the  breach  of 
the  contract),  and  costs.  The  county  court 
rendered  judgment  for  the  defendant  upon  the 
report,  to  which  the  plaintiff'  excepted. 

A.  M.  Dickey,  for  the  plaintiff'. 

,  for  the  defendant. 

The  opinion  of  the  court  was  delivered  by 

ALOIS.  ,T.  The  (|uestion  whether  the  plea  in 
offset  was  filed  within  the  time  prescribed  by 
the  rules  of  court,  can  not  properly  be  raised 
after  a  reference  of  the  case,  and  a  hearing  be- 
fore the  referees.  Even  if  out  of  time,  the 
court  might  have  suspended  the  rule  and  ad- 
mitted the  plea.  The  objection  must  be  held 
as  waived  by  the  reference. 

The  contract  between  the  plaintiff  and  the 
defendant,  as  stated  in  the  report,  was  this:  a 
verbal  contract  by  which  the  defendant  was  to 
carry  on  the  plaintiff's  saw  mill  for  one  year, 
make  all  repairs  costing  one  dollar  or  less  at 
any  one  time,  run  the  mill  all  the  time  from  the 
1st  of  March  to  the  1st  of  May,  and  from  the 
fall  till  the  1st  of  March,  1854,  and  between  the 
first  of  May  and  fall,  when  there  was  water 
enough,  and  do  all  the  work  in  a  good  work- 
manlike manner,  and  to  receive  fifty  cents  per 
thousand  for  soft  lumber  sawed,  and  one-third 
of  the  hard  lumber  for  sawing  the  same,  and 
to  take  his  pay  out  of  the  money  received  for 
sawing,  and  out  of  the  hard  lumber. 

In  September,  185:1  the  plaintiff  dismissed 
the  defendant  from  the  charge  of  the  mill,  on 
the  ground  that  lie  did  not  do  the  work  in  a 


good  workmanlike  manner,  and  the  defendan*; 
left.  The  referees  find  that  the  defendant  did 
not  do  his  work  in  a  good  workmanlike  man- 
ner, and  as  this  suit  is  brought  to  recover  the 
damages  occasioned  to  the  plaintiff  by  such 
breach  of  the  contract,  the  referees  assess  such 
damages  at  the  sum  of  fifteen  dollars. 

The  defendant  pleads  in  offset  his  claim  for 
the  balance  due  him  for  his  labor  and  earnings 
during  the  time  he  carried  on  the  mill. 

The  plaintiff  objects  to  any  allowance  to  the 
defendant  for  such  earnings,  upon  the  ground 
that  the  contract  was  the  mere  hiring  of  a  serv- 
ant for  a  specific  period  of  time,  and  that  he 

was  discharged  for  .good  cause. 
*609  *The  contract  in  this  case  we  can  not 
deem  the  mere  hiring  of  a  servant.  It  was 
an  agreement  of  a  different  character,  in 
which  the  defendant  assumed  liabilities  for  re- 
pairs of  the  mill,  had  a  share  in  its  profits,  and 
in  fact,  was  put  in  possession  of,  and  had,  to 
some  extent,  an  interest  in  real  estate.  He  was 
not  to  receive  any  fixed  sum  as  wages,  but  was 
to  have  a  proportion  of  the  profits  of  the  busi- 
ness he  carried  on.  It  was  a  contract  for  the 
control  and  carrying  on  of  a  mill  for  a  year. 

Similar  contracts  are  frequently  made  as  to 
the  carrying  on  of  farms  on  shares.  In  such 
cases,  the  contracts  have  never  been  held  mere 
agreements  by  the  tenants  to  labor  as  hired  serv- 
ants. 

Neither  does  it  belong  to  that  class  of  con- 
tracts where  the  stipulations  are  intended  to  be 
a  condition  precedent,  and  there  can  be  no  re- 
cover}' without  a  complete  performance.  The 
agreement  on  the  part  of  the  defendant  was  not 
for  such  an  entire  thing  that  the  whole  must  be 
done  before  he  would  be  entitled  to  recover:  on 
the  contrary,  the  terms  of  the  contract  show 
that  both  parties  intendedthe  defendant  should 
take  his  pay  out  of  the  earnings  of  the  mill  as 
they  accrued. 

This  case  seems  to  come  within  the  reason  of 
those  cases,  of  which  there  are  many  in  our  re- 
ports, where  upon  equitable  considerations 
growing  out  of  the  contract  and  its  part  per- 
formance, a  recovery  Tor  the  real  beneficial 
value  of  the  labor  has  been  allowed. 

The  defendant's  labor  was  beneficial  to  the 
plaintiff'.  Compensation  to  the  plaintiff  for 
what  he  suffered  from  the  breach  of  contract 
by  the  defendant  was  easily. to  be  ascertained, 
has  been  assessed,  and  cau  be  deducted  from 
the  beneficial  value  to  the  plaintiff  of  the  de- 
ant's  labor. 

It  would  be  highly  unjust  for  the  plaintiff  to 
take  advantage  of  the  defendant's  failure  to 
perform  some  one  particular  in  his  contract,  so 
as  not  only  to  put  an  end  to  the  contract,  but 
to  put  all  the  earnings  of  the  defendant  into 
his  own  pocket,  and  deprive  the  defendant  of 
any  compensation  for  his  work. 

The  decisions  in  Dyer  v.  Jones,  8  Vt.  205;  Gil- 
man  V.  Hall,  11  Vt.  510;  Bracket  v.  Moore,  23 
Vt.  554;  and  Morrison  v.  Cummings,  26  Vt.  480. 
establish  the  right  of  the  party  to  recover  on  a 
quantum  mcTuit,  in  cases  where  a  compensation 
can  be  made,  and  the  stipulations  are  not  in- 
tended as  a  condition  precedent. 

The  judgment  of  the  county  court  is  aflarmed. 


334 


BliKACII    OF    CONritACrS    KESPPX'TlNd    PfHtSONAL    SEKVIClv 


MACY  V.  I'EACH. 

(44  Pae.  (;87.  2  Kan.  App.  575.) 

Court  of  Appeals  of  Kansas,  Northern  Depart- 
ment, C.  D.     April  :'.,  ISIX;. 

Error  from  district  couit,  Osborne  county. 

Action  by  C.  W.  Peach  against  .J.  C.  Macy 
In  a  justice  court.  Judgment  for  plaintiff, 
aJid  defendant  appeals  to  the  district  court. 
Judgment  for  plaintiff,  and  defendant  brings 
error.     Attirmed. 

Robinson  &  McBride,  for  plaiutifC  in  error. 
Israel  Moore  and  W.  N.  Moore,  for  defendant 
in  error. 


CLARK,  J.  About  the  1st  of  March,  1891, 
a  verbal  contract  was  entered  into  between 
one  Henry  Glodfelty  and  the  plaintiff  in  er- 
ror, J.  C.  Macy,  whereby  the  former  agreed 
to  work  for  the  latter,  on  his  farm  in  Os- 
borne county,  for  a  term  of  nine  months  at 
the  stipulated  wages  of  $17  per  month.  Glod- 
felty went  to  work  under  this  contract  on 
March  4th  and  remained  with  Mr.  Macy  un- 
til July  8th,  and  then,  without  any  sufficient 
reason  therefor,  and  over  Macy's  objection, 
quit  and  refused  further  to  comply  with  the 
terms  of  his  contract.  Glodfelty  was  a  minor 
stepson  of  C.  W.  Peach,  tlie  defendant  in 
error,  and  the  latter  brought  an  action  before 
a  justice  of  the  peace  to  recover  the  balance 
of  the  wages  claimed  to  be  due  his  stepson. 
The  case  was  subsequently  taken  to  the  dis- 
trict coui-t,  where  amended  bills  of  particulars 
were  filed  by  both  parties,  and  a  trial  was 
duly  had  before  the  court,  a  jury  being 
waived,  resulting  in  a  finding  in  favor  of 
the  plaintiff  for  the  amount  claimed  by  him 
"less  the  damages  sustained  by  the  defend- 
ant in  the  sum  of  $18.69,  to  wit,  that  plaintiff 
should  recover  of  the  defendant  the  sum  of 
$45.20;  the  damages  allowed  being  the  dif- 
ference between  the  per  diem  paid  the  em- 
ploye, Glodfelty,  and  $2  per  day,  the  amount 
per  diem  the  court  considered  a  proper  com- 
pensation for  which  additional  help  could  be 
employed,  as  needed,  to  take  the  place  of 
said  employe  during  harvest."  The  defend- 
ant excepted  to  the  finding  of  the  court;  filed 
his  motion  for  a  new  trial,  setting  forth  all 
the  statutory  grounds  therefor,  which  was 
overruled,  the  defendant  duly  excepting;  and 
judgment  was  rendered  in  favor  of  the  plain- 
tiff' for  .$45.26.  The  defendant  seeks  a  re- 
versal of  this  judgment. 

The  only  assignment  of  eiTor  to  which  par- 
ticular attention  it.  called  by  counsel  is  that 
the  court  erred  in  its  finding  as  to  the  dam- 
ages which  the  defendant  below  sustained 
through  the  breach  of  the  contract  by  Glod- 
felty, and  it  is  claimed  that,  under  the  evi- 
dence, the  plaintiff  in  error  was  entitled  to 
damages  under  his  counterclaim,  and  that 
there  was  no  evidence  in  the  case  to  war- 
rant the  finding  of  the  damages  that  were  as- 
sessed by  the  trial  court  as  having  been  sus- 


tained by  the  plaintiff  in  error.  In  his  coun- 
terclaim, the  defendant  alleged  the  breach  of 
the  contract,  and  that  the  defendant  was  un- 
able to  get  help  to  take  the  place  of  Glodfelty, 
and  could  not,  therefore,  get  his  work  done, 
wheat  harvested,  nor  corn  properly  tilled,  nor 
stock  properly  cared  for,  whereby  he  was 
damaged  in  the  sum  of  $.500.  The  defendant 
in  error  claims  that,  as  this  action  was  orig- 
inally brought  befo]-e  a  justice  of  the  peace, 
the  district  court,  on  appeal,  had  no  jurisdic- 
tion of  this  counterclaim,  it  exceeding  the 
sum  of  $300.  Had  this  objection  been  inter- 
posed in  the  trial  court,  the  cases  of  Ball  v. 
Biggam,  43  Kan.  327,  23  Pac.  505,  and  Wag- 
staff  V.  Challiss,  31  Kan.  212,  1  Pac.  031, 
would  be  authorities  supporting  such  conten- 
tion; but,  as  no  objection  was  there  made, 
the  defendant  in  error  cannot  be  permitted,  in 
this  court,  for  the  first  time,  to  ol)jeet  to  the 
jurisdiction  of  the  trial  court  to  hear  and  de- 
termine such  comaterclaim.  Gregg  v.  Garver- 
ick,  33  Kan.  190,  5  Pac.  751. 

Did  the  court  en*  in  refusing  to  allow  the 
defendant  damages  under  his  counterclaim? 
In  AYalrath  v.  Whittekind,  26  Kan.  482,  it  is 
said  that  "damages  recoverable  upon  breach 
of  contract  are  only  those  damages  which 
are  the  direct  and  proximate  result  of  the 
wrong  complained  of.  Damages  which  are 
remote  and  speculative  cannot  be  recovered." 
While  the  defendant  may  have  suffered  loss 
by  reason  of  Glodfelty's  misconduct,  still  it 
must  be  remembered  that  the  law  does  not 
hold  one  liable  for  all  the  consequences  that 
may  follow  the  breach  of  his  contract.  If  it 
were  so,  his  liability  would  be  without  a  limit, 
for  il  would  continue  as  far  as  the  conse- 
quences of  his  act  could  be  traced.  The  law 
wisely  limits  liability  to  the  direct  and  im- 
mediate effects  of  the  breach  of  a  contract. 
The  losses  set  up  in  defendant's  counterclaim 
are  not  of  this  character.  They  may  have 
resulted  remotely  from  the  fact  that  Glodfelty 
failed  to  remain  with  the  plaintiff  in  error 
as  a  "farm  hand"  for  the  full  period  of  nine 
months,  but  they  cannot  be  said  to  be  the 
natural  and  proximate  consequence  of  the 
breach  of  the  contract  of  employment.  Ful- 
ler V.  Curtis,  100  Ind.  237;  Jackson  v.  Hall, 
84  N.  C.  489;  McDaniel  v.  Crabtree,  21  Ark. 
431;  Johnson  v.  Mathews,  5  Kan.  118.  In 
support  of  the  contention  of  plaintiff  in  error 
that  the  court  erred  in  assessing  his  damages, 
our  attention  has  been  called  to  the  case  of 
Houser  v.  Pearce,  13  Kan.  104,  in  which  the 
plaintiff  recovered  a  judgment  for  damages 
for  breach  of  a  siiecific  contract  to  cut,  bind, 
and  stack  certain  oats,  and  the  supreme  court 
held  that  if  the  plaintiff,  after  using  all  rea- 
sonable precaution,  lost  his  crop  by  reason, 
solely,  of  the  failure  of  the  defendants  to  per- 
from  their  contract,  he  was  clearly  entitled  to 
recover  the  amount  of  such  loss;  and,  as' the 
record  did  not  melude  the  evidence,  the  court 
held  that  the  presumption  was  that  the  in- 
struction given  of  which  complaint  was  made 
was  warranted  by  the  evidence. 


DA.MA(!i:S   IX   ACTIONS   A(iAl.\'ST  EMTLOYE. 


335 


There  is,  however,  quite  a  noticeable  distiue- 
tion  between  that  case  and  this  one.  Here, 
the  contract  between  the  parties  \vas  not 
made  with  any  special  reference  to  the  har- 
vesting of  the  defendant's  wheat  crop,  nor  to 
the  cultivation  of  any  particular  lield  of 
growing  corn;  but,  on  the  contrary,  it  is  fair 
to  presume  that  the  work  expected  to  be  per- 
formed by  him  was  general  in  its  nature, 
such  as  is  usually  required  of  a  "farm  hand," 
and  it  cannot  fairly  be  supposed  that  the 
damages  alleged  in  the  counterclaim  were 
within  the  contemplation  of  the  parties  to 
this  contract  when  it  was  executed,  nor  could 
such  damages  naturally  be  expected  to  fol- 
low a  violation  of  the  contract.  The  evidence 
in  support  of  the  damages  sustained  by  the 
defendant  below,  as  alleged  in  his  bill  of 
particulars,  is  very  unsatisfactory.  Instead, 
of  being  recitals  of  fact,  the  testimony  of  the 
several  witnesses  amounts  only  to  expressions 
of  opinion  as  to  the  damages  which  the  de- 
fendant sustained,  and  was  clearly  incompe- 
tent. But  we  do  not  think  the  defendant  be- 
low was  entitled  to  recover  the  damages  al- 
leged by  him  in  his  counterclaim.  In  Peters 
V.  Whitney,  23  Barb.  24,  this  identical  ques- 
tion was  before  the  court,  and  it  was  there 
held  that  "in  an  action  for  the  breach  of  a 
contract  for  work  and -labor  to  be  done  upon 
a  farm,  evidence  of  damage  occurring  to  the 
plaintiff's  crops  in  consequence  of  the  defend- 
ant's leaving  his  service  is  inadmissible.  The 
legal  measure  of  damages  in  such  cases  is 
the  difference  between  the  wages  agreed  to 
be  paid  to  the  defendant,  and  the  price  the 
plaintiff  was  obliged  to  pay  for  labor  to  sup- 
ply his  place."  In  Riech  v.  Bolch,  68  Iowa, 
52G,  27  N.  W.  507,  it  is  said  that,  "where  one 
employed  by  a  farmer,  for  a  given  term, 
abandons  his  employer  before  the  end  of  the 
term,  in  the  rnidst  of  haying,  the  damages 
sustained  by  the  employer  in  the  loss  of  hay 
are  too  remote  to  be  recovered  in  an  action 
for  a  violation  of  the  contract."     In  that  case, 


the  defendant  offered  to  prove  that,  when 
plaintiff  left  his  service,  he  had  a  large  quan- 
tity of  hay  in  the  shock,  and  that  he  had  a 
quantity  of  uncut  hay  in  the  field,  and  that 
he  was  unable  to  employ  other  help  to  save 
such  hay,  and  that  it  was  lost  in  consequence 
of  plaintiff's  refusal  to  continue  in  his  service 
during  the  remainder  of  the  term  of  his  em- 
ployment; and  also  offered  to  prove  the  value 
of  the  hay  at  the  time  the  plaintiff  quit  his 
services.  This  evidence  was  excluded  by  the 
district  court,  on  the  ground  that  it  did  not 
afford  the  prop'er  measure  of  damages.  The 
supreme  court,  in  sustaining  this  ruimg.  held 
that  "it  cannot  be  said  that  the  injury  com- 
plained of  is  the  natural  and  proximate  con- 
sequence of  plaintiff's  breach  of  the  contract." 
In  the  case  of  Houser  v.  Pearce,  supra,  the 
trial  court  refused  an  instruction  to  the  juiy 
that  the  measure  of  damages  was  the  differ- 
ence between  the  contract  price  and  what  it 
would  have  cost  to  have  had  the  work  done 
by  others;  and  the  supreme  court,  speaking 
through  Mr.  Justice  Brewer,  says  that  *'th's 
instruction  states  what  would,  perhaps,  be 
the  ordinary  rule  for  the  measure  of  dam- 
ages." 

This  is  the  rule  laid  down  in  Peters  v.  Whit- 
ney, supra,  which  the  tiial  court  evidently 
sought  to  apply;  but  the  record,  as  stated  by 
plaintiff  in  error,  is  entirely  silent  as  to  the 
amount  which  would  probably  be  necess-uy 
to  pay  for  additional  help  to  take  the  place 
of  Glodfelty  during  harvest,  except  that,  after 
the  latter  left  Macy,  he  was  employed  by  Mr. 
Smith  at  $1.25  a  day;  but  whether  tlie  court 
erred  in  estimating  the  damages  of  the  p'ain- 
tiff  in  error  in  this  respect  is  immaterial,  as 
any  error  therein  inured  to  the  benefit  of  the 
plaintiff  in  error.  We  think,  from  an  ex- 
amination of  the  entire  record,  that  the  plnin- 
tiff  in  error  has  failed  to  point  out  any  preju- 
dicial error  therein,  and  that  the  judgment 
should  be  affirmed.  All  tne  judges  concur- 
ring. 


336 


DAMAGES   IN  ACTIONS   AGAINST  CARRIERS. 


HARVEY  V.  CONNECTICUT  &  P.  R.  R.  CO. 

(124  Mass.  421.) 

SuiHcine    Judicial    Court    of    Massadmsotts. 

Suffolk.     May  25,  1878. 
Report  from   supreme  judicial   court,    Suf- 
folk couuty;   Colt,  Judge. 

R.  D.  Smith,  for  plaintiff.  C.  T.  Russell 
and  C.  T.  Russell,  Jr.,  for  defendant. 

ENDICOTT,  J.  The  defendant  agreed  in 
writing  with  the  plaintiff  to  transport  lum- 
ber from  certain  stations  on  the  Grand  Trunk 
Railway,  in  Canada,  to  Boston,  at  a  certain 
rate  of  freight,  for  a  period  of  twelve  months 
from  August  31.  1871.  This  agreement  con- 
stituted a  continuing  offei',  on  the  part  of  the 
defendant,  to  transport  such  lumber  as  the 
plaintiff  should  furnish  at  the  specified  points 
during' the  period  named,  and  was  binding 
on  the  defendant  whenever,  during  that  time, 
the  plaintiff  tendered  lumber  for  transporta- 
tion according  to  its  teims;  and  failure  to 
transport  the  lumber  afterwards  offered  by 
the  plaintiff  was  a  breach  of  the  contract. 
Eornstein  v.  Lans,  104  Mass.  214. 

It  also  appeared  that  the  plaintiff  informed 
the  company,  at  the  time,  that  he  desired  to 
make  this  contract,  because  he  wished  to 
make  contracts  with  other  persons  to  sell 
and  deliver  railroad  ties  in  Boston.  He  aft- 
erwards made  contracts  with  two  railroads 
for  the  delivery  of  ties  in  Boston.  He  noti- 
fied the  defendant  for  the  first  time  in  May 
or  June.  1872,  that  he  had  made  such  con- 
tracts, and  demanded  transportation  for  a 
portion  of  these  ties  to  Boston,  under  his  con- 
tract. This  the  defendant  failed  to  do.  As 
the  plaintiff  had  made  no  contracts  for  the 
delivery  of  ties  in  Boston  at  the  time  when 
the  defendant  entei'ed  into  the  agreement  to 
transport,  and  no  notice  was  or  could  then 
have  been  given  of  the  character  and  terms 
of  those  contracts,  we  are  of  opinion  that  the 
defendant  cannot  be  held  liable  in  damages 
for  the  profits  which  would  have  accrued  to 
the  plaintiff  under  such  subsequent  contracts. 
Such  damages  could  not  have  been  in  the  con- 
templation of  the  parties  when  they  made 
their  contract,  as  a  probable  result  of  a 
breach  of  it. 

When  a  carrier  receives  goods  for  trans- 
portation, and  fails  to  deliver  them,  the  own- 
er is  entitled  to  recover  the  market  value  of 
the  goods  at  the  time  and  place  at  which  they 
should  have  been  delivered.  Spring  v.  Has- 
kell, 4  Allen.  112.  And  whore  the  carrier 
negligently  delays  the  delivery  of  goods,  he 
is  liable  for  loss  in  their  market  value  during 
the  delay.  Cutting  v.  Railway  Co.,  13  Allen, 
381.  It  is  said  in  that  case  that  this  "is  the 
most  simple  and  just  rule,  as  well  as  the 
easiest  to  be  applied;  for  it  depends  on  the 
general  market  value  of  the  goods,  and  in- 
volves no  question  of  contingent  or  specu- 
lative profits,  and  no  consideration  of  any 
other  contracts  made  or  omitted  to  be  made 
by  the  plaintiff'  in  view  of  his  contract  with 


the  defendant.  To  refer  to  sudi  (jtlier  con- 
tracts, or  the  profits  wtiich  might  have  re- 
sulted from  them,  not  Avithin  the  knowledge 
or  contemplation  of  the  defendant,  would  be 
to  hold  him  liable  for  the  consequences,  or  al- 
low him  the  benefit,  not  of  his  own  contract 
with  the  plaintiff,  but  of  dealings  betAveen 
the  latter  and  third  persons,  with  which  the 
defendant  had  nothing  to  do." 

If,  therefore,  the  defendant  had  received 
the  ties  for  transportation  according  to  its 
contract,  and  failed  to  deliver  them  at  all, 
it  would  have  been  liable  for  their  mar- 
ket value  in  Boston  at  the  time  when  they 
should  have  been  delivered;  or  if  it  had  neg- 
ligently delayed  the  delivery,  it  would  have 
been  liable  for  the  diminution  in  their  mar- 
ket value  during  the  delay.  It  would  not, 
in  either  event,  have  been  liable  in  damages 
for  loss  of  profits  sustained  by  the  plaintiff 
under  his  subsequent  contracts  with  other 
parties;  unless  it  can  be  said  that,  by  reason 
of  the  plaintift''s  announcement  that  he  in- 
tended to  make  such  contracts,  it  was  neces- 
sarily within  the  contemplation  of  the  parties 
when  they  made  the  contract  of  transporta- 
tion, and  as  the  probable  consequence  of  its 
breach,  that  the  defendant  might  be  liable 
for  damages  resulting  to  the  plaintiff  from 
his  inability  to  fulfill  such  contracts,  the 
terms  of  which  Avere  not  and  could  not  then 
be  disclosed. 

The  damages,  for  which  a  carrier  is  liable 
upon  failure  to  perform  his  contract,  are 
those  which  result  from  the  natural  and  or- 
dinary consequences  contemplated  at  the  time 
of  making  the  contract  of  transportation; 
and  a  larger  liability  can  be  imposed  upon 
him,  only  when  it  is  in  the  contemplation  of 
the  parties  that  the  carrier  is  to  respond,  in 
case  of  breach,  for  special  and  exceptional 
damages.  In  such  a  case,  the  extent  and 
character  of  the  obligation  he  assumes  should 
be  known  to  the  carrier,  which  in  this  case 
was  impossible,  as  the  contracts  were  not 
then  made.  The  mere  knowledge  on  the  part 
of  the  defendant,  that  the  plaintiff  intended 
to  make  contracts  for  the  sale  of  the  ties  to 
be  transported,  cannot  impose  a  liability  up- 
on the  defendant  for  loss  of  profits  on  such 
contracts.  Whether  there  would  be  a  loss  of 
profits,  it  was  of  course  then  impossible  to 
determine,  and  probable  profits  would  be  in- 
capable of  estimation.  If  the  defendant  is 
liable  in  this  ease  for  such  possible  or  prob- 
able profits,  then  every  carrier  Avho  is  in- 
formed, when  he  takes  goods  for  transporta- 
tion, that  the  shipper  intends  to  sell  them. 
is  liable,  upon  failure  tc  perform  his  contract, 
for  loss  to  the  shipper  in  his  dealings  with 
other  parties,  with  which  the  carrier  has 
nothing  to  do,  and  the  result  of  which  it  is 
impossible  for  him  to  anticipate.  Scott  v. 
Steamship  Co.,  106  Mass.  468.  This  would 
be  to  introduce  a  new  and  uncertain  element 
of  liability  into  the  contract,  and  we  are  not 
aware  of  any  authority  which  goes  to  that 
extent. 


CARRIERS  OF  GOODS. 


837 


In  lladley  v.  Baxoiidale,  9  Excli.  341.  the 
owners  of  a  mill  sent  a  bn^ken  shaft  by  a 
canitn-,  as  a  pattern  to  a  manufacturer,  to 
make  a  new  shaft,  and  at  the  time  informed 
the  f-arrier  that  the  mill  was  stopped,  and  the 
shaft  must  be  delivered  immediately.  The 
carried  delayed  its  delivery  for  an  unreason- 
able time,  in  consequence  of  which  the  own- 
ers did  not  receive  the  new  shaft  until  some 
days  after  they  should  have  received  it,  and 
were  luiable  to  work  their  mill  for  want  of 
it,  and  thereby  incurred  a  loss  of  profits.  But 
it  was  held  that  such  loss  could  not  be  re- 
covered, on  the  ground  that  it  could  not  rea- 
sonably be  supposed  to  have  been  in  the  con- 
templation of  the  parties  at  the  time  they 
made  the  contract,  as  a  probable  result  of  a 
breach  of  it,  that  there  would  be  necessarily 
a  loss  of  profits. 

In  Home  v.  Railway  Co.,  L.  R.  7  C.  P.  583, 
the  plaintiffs  wore  under  a  contract  to  sup- 
ply a  quantity  of  military  shoes  at  a  cer- 
tain day,  in  London,  at  an  unusually  high 
price.  They  were  delivered  to  the  defendant, 
with  notice  that  the  plaintiffs  were  under 
a  contract  to  deliver  the  shoes  on  that  day, 
and  unless  they  were  so  delivered,  they  would 
be  thrown  upon  their  hands;  but  no  notice 
was  given  of  the  terms  of  the  contract.  The 
defendant,  a  common  carrier,  failed  to  deliv- 
er them  within  the  time.  The  plaintiff  claim- 
ed as  damages  the  difference  betw^een  the 
price  at  whiclv  they  had  contracted  to  sell  the 
shoes,  and  the  price  which  they  ultimately 
brought.  But  it  was  held  that  they  were 
LAW  DAM.2d  Ed.— 22 


not  entitled  to  recover  that  sum,  the  damage 
not  being  the  natural  consequence  of  the  de- 
fendant's failure  to  perform  its  contract,  and 
the  defendant  not  having  had  notice  that  tlie 
sale  Avas  at  an  exceptional  price. 

This  question  has  been  considered  in  nu- 
merous cases,  and  it  is  sufficient  to  say  that 
the  principle  upon  which  Hadley  v.  Baxen- 
dale  was  decided  is  now  well  established, 
though  some  of  the  dicta  of  Baron  Alderson, 
in  delivering  the  judgment,  have  been  the 
subject  of  criticism.  Home  v.  Raihvav  Co., 
L.  R.  8  C.  P.  131,  133,  141;  Gee  v.  Railway 
Co.,  G  Hurl.  &  N.  211;  Borries  v.  Hutchinson, 
18  C.  B.  (N.  S.)  445;  Railway  Co.  v.  Red- 
mayne,  L.  R.  1  C.  P.  329;  Wilson  v.  Dock 
Co.,  L.  R.  1  Exch.  177  184,  ISG;  Woodger  v. 
Railway  Co.,  L.  R.  2  C.  P.  318;  Sawmill  Co. 
V.  Nettleship,  L.  R.  3  C.  P.  499;  Cory  v. 
Ironworks  Co.,  L.  R.  3  Q.  B.  181.  See,  also. 
Waters  v.  Towers.  8  Exch.  401,  and  Baron 
Parke's  observation  thereon  in  Hadley  v. 
Baxendale,  9  Exch.  349. 

We  are  therefore  of  opinion  there  was  error 
in  instructing  the  jury  that  the  pl.wiitiff  could 
recover  damages  for  loss  of  profits  on  his 
subsequent  contracts.  As  the  ties  were  not 
sent  to  Bostop,  the  true  measure  of  damages 
is  the  difference  between  the  market  price  iu 
Boston  and  the  market  price  in  Canada  at 
the  time  when  the  defendant  should  have 
transported  the  ties  according  to  its  contract, 
deducting  therefrom  the  price  stipulated  in 
the  contract  for  transportation. 

Verdict  set  aside. 


b8cS 


DAMAGES  IN  ACTIONS  AGAINST  CARRIERS. 


WARD'S  CENTRAL  &  PACIFIC  LAKE  CO. 
V.  ELKINS. 

(34  Mich.  439.) 

Supreme  Court  of  Michigan.     October  Term, 
1876. 

Error  to  superior  court  of  Detroit. 

Moore,  Canfield  &  Waruer,  for  plaintiff  in 
error.    Alfred  Russell,  for  defendant  in  error. 

CAMPBELL,  J.  Elkins  recovered  dam- 
ages against  the  plaintiff  in  error  for  failure 
to  carry  certain  salt  from  Bay  City  to  Chi- 
cago in  November,  1874.  Elliins  was  a  salt 
dealer  in  Chicago,  and  sued  upon  an  alleged 
contract  Avhereby  the  plaintiff  in  error  M'as  to 
carry  three  cargoes  of  salt,  of  about  seven- 
teen thousand  bushels  in  all,  only  one  of 
which  was  taken.  The  cargoes  were  to  be 
called  for  from  the  lOth  to  the  20th  of  No- 
vember. The  regular  business  of  plaintiff'  in 
error  was  between  Buffalo  and  Duluth,  with 
power,  as  was  claimed,  to  do  business  else- 
whei'e  on  the  lakes. 

Elkins  gave  evidence  tending  to  show  that 
he  could  not  get  vessels  to  carry,  the  salt 
after  plaintiff's  default.  He  had  it  taken  by 
rail  to  Chicago  in  lots  as  he  wanted  it,  from 
January  to  some  time  in  April,  1875,  and 
was  allowed  to  recover  the  difference  be- 
tween the  price  agreed  on  with  plaintiff  and 
what  he  paid  for  the  transportation  by  rail. 
This  is  the  chief  error  complained  of. 

We  do  not  see  upon  what  rule  this  recov- 
ery can  be  justified.  The  damage  to  which 
Elkins  was  entitled,  if  any,  would  be  such 
as  would  have  placed  him  in  the  position  he 
would  have  occupied  had  the  salt  been  taken 
to  Chicago  by  vessel  as  agreed.  It  was  not 
an  article  of  specific  utility  for  preservation, 
but  an  article  of  merchandise,  and  only  valu- 
able as  such.  The  only  advantage  he  could 
have  gained  by  a  timely  shipment  according 
to  contract  would  have  been  the  excess  of 
the  value  of  salt  in  the  Chicago  market  at 
the  date  when  it  should  have  arrived,  be- 
yond what  it  was  worth  in  Bay  City  and  the 
expenses  of  loading,  shipment  and  delivery  at 
his  warehouse  in  Chicago.  If  there  was  no 
such  excess  in  value  at  that  time,  then  he 
was  not  damaged.  If  there  ^vas  such  an  ex- 
cess, then  he  was  entitled  to  that  and  noth- 
ing more. 

He  would  not  have  been  justified  in  procui'- 
ing  shiinnent  by  rail,  if  the  railroad  process 
would  have  rendered  it  vmprofitable.  There 
are,  no  doubt,  cases  where  property  is  of 
such  a  nature,  or  where  the  necessity  of  hav- 


ing it  at  a  certain  point  is  so  imperative,  that 
the  circumstances  may  justify  employing  any 
transportation  which  is  accessible,  and  may 
rend(  ;•  the  difference  in  cost  of  transporta- 
tion a  proper  measure  of  damages.  But  this 
can  never  be  proper  in  regard  to  ordinary 
articles  of  consumption,  always  to  be  found 
in  the  market,  and  only  valual)le  to  the  own- 
er for  their  merchantable  qualities.  A  per- 
son has  no  right  to  put  others  to  an  expense 
of  such  a  nature  as  he  would  not  as  a  rea- 
sonable man  incur  on  his  own  account.  Le 
Blanche  v.  Railway  Co.,  1  C.  P.  Div.  286. 

When  such  a  necessity  exists,  it  is  main- 
tained only  as  a  necessity,  and  allowed  be- 
cause of  its  urgency.  If  such  a  rule  is  ever 
applicable,  it  cannot  be  satisfied  by  allowing 
a  party,  instead  of  seeking  other  means  of 
carriage  immediately  at  hand,  to  await  his 
leisure  and  speculate  on  future  chances  and 
make  shipments  piecemeal,  as  was  done  here. 

It  is  altogether  likely  that  after  the  close 
of  navigation,  and  as  the  winter  goes  on, 
prices  maj'  rise  so  as  to  warrant  shipments 
by  rail,  when  this  would  not  have  been  prof- 
itable earlier;  and  it  may  be  possible,  after 
paying  railroad  rates,  to  make  as  much  profit 
as  if  the  salt  had  been  received  by  steam  on 
the  lakes  and  put  in  market  in  the  fall  at 
fall  rates.  It  would  be  absurd  to  say  that 
these  deliberate  winter  shipments  were  ne- 
cessitated or  justified  by  a  failure  to  get  ship- 
ping facilities  during  the  season,  or  near  the 
close  of  navigation  in  November.  It  would 
be  equally  unjust  to  allow  the  owner  of  tlu; 
salt  to  speculate  on  the  chances  of  a  market 
without  risk  to  himself. 

The  rule  of  damages  should  have  been  as 
previously  indicated,  and  should  in  no  case 
exceed  the  damages  actually  incuri-ed.  A 
party  who  has  lost  nothing  by  a  breach  of 
contract,  is  not  entitled  to  damages  of  a  sub- 
stantial character. 

We  think  there  was  also  error  in  allowing 
the  statements  of  a  steamboat  clerk,  Avho 
was  not  shown  to  occupy  any  position  of  gen- 
eral agency,  to  be  received  in  evidence  to 
bind  the  company;  and  that  improper  ques- 
tions were  allowed,  which  called  for  the  in- 
ferences of  a  witness  rather  than  the  actual 
terms  of  the  contract  in  suit. 

But  we  do  not  enlarge  upon  these,  as  they 
are  not  likely  to  arise  again,  and  the  main 
issue  is  upon  the  question  of  damages,  and 
the  real  terms  of  the  agreement,  as  absolute 
or  conditional. 

The  judgment  must  be  reversed,  with  costs, 
and  a  new  trial  granted.  The  other  justices 
concurred. 


CAUUIKUS  OF  GOODS. 


339 


DEVEREUX   V.   BUCKLEY  et  al. 

(34  Ohio  St.  16.) 

Supreme  Court  of  Ohio.     Dec.  Term,  1877. 

Action  by  J.  P.  Buckley  &  Co.  agaiust  Dev- 
ereux,  receiver  of  the  Atlantic  &  Great  West- 
ern Railroad.  A  judgment  for  plaintiff  in 
the  common  pleas  was  affirmed  in  the  district 
court,  and  defendant  moves  for  leave  to  tile 
a  petition  in  error.     Motion  overruled. 

Durbin  Ward,  for  the  motion.  Wm.  E. 
Imes,  opposed. 

GILMORE,  J.  The  action  in  the  court  t)f 
common  pleas  was  not  brought  upon  any  ex- 
press or  .special  contract,  but  to  recover  dam- 
ages for  a  breach  of  an  implied  agreement  to 
carry,  and  deliver  at  the  place  of  consign- 
ment, a  large  lot  of  eggs,  within  a  reasonable 
time,  by  a  common  carrier. 

By  failing  to  answer,  the  defendant  ('plain- 
tiff in  error)  admitted  the  breach  as  alleged. 

On  an  inquiry  of  damages,  the  court, 
against  the  objection  of  the  defendant,  pei*- 
raitted  testimony  to  go  to  the  jury  tending 
to  prove  the  market  value  of  eggs  at  the  place 
of  consignment  on  the  day  they  ought  to  have 
been  delivered,  and  their  value  at  that  place 
on  the  day  they  were  actually  delivered,  and 
that  their  value  was  less  on  the  latter  than 
on  the  former  day. 

Counsel  for  the  plaintiff  in  error  contends 
that  the  court  erred  in  admitting  this  testi- 
mony to  go  to  the  jury,  on  the  ground  that 
the  defendant  "is  only  bound  to  make  good 
the  loss  which  is  the  natural  and  legitimate 
result  of  his  failure  to  comply  with  his  con- 
tract"; and  that  a  loss  arising  from  a  depre- 
ciation in  the  market  value  of  eggs  at  the 
place  of  delivery,  in  consequence  of  his 
breach  of  the  contract,  is  not  a  natural  or 
legitimate  result  of  such  breach. 

In  support  of  this  proposition,  counsel  relies 
very  much  upon  the  leading  English  case  of 
Hadley  v.  Baxendale,  9  Exch.  341.  The  rule 
laid  down  in  that  case  for  the  ascertainment 
of  damages  in  cases  of  breach  of  contract  is 
divided  into  two  alternative  heads.  Under 
the  first  of  these,  damages  are  to  be  allowed 
which  would  arise  naturally,  or  according  to 
the  usual  course  of  things  from  the  breach 
of  the  contract;  and,  vmder  the  second,  those 
which  may  fairly  be  supposed  to  have  been 
contemplated  by  the  parties  as  the  probable 
result  of  such  breach. 

The  case  before  tliat  court  fell  nnder  the 
first  of  these  heads,  as  Avill  appear  from  the 
following  language,  taken  from  the  opinion: 
"Now,  in  the  present  case,  if  we  are  to  apply 
the  principles  above  laid  down,  we  find  that 
the  only  circumstances  here  communicated 
by  the  plaintiffs  to  the  defendants,  at  the 
time  the  contract  was  made,  were  that  the  ar- 
ticle to  be  carried  was  the  broken  shaft  of  a 
mill,  and  that  the  plaintiffs  were  the  millers 
of  that  mill.     But  how  do  these  circumstan- 


ces show  reasonably  that  the  profits  of  the 
mill  must  be  stopped  by  an  unreasonable  de- 
lay in  the  delivery  of  the  broken  shaft  by  the 
carrier  to  the  third  person?" 

And  the  court  was  of  the  opinion  that,  un- 
der those  circumstances,  the  profits  of  the 
mill,  which  were  lost  in  consequence  of  the 
breach  of  the  contract  to  deliver  the  broken 
shaft,  which  was  to  be  used  as  a  pattern  for 
a  new  one,  within  a  reasonable  time,  did  not 
constitute  such  damages  as  would  arise  nat- 
urally, or  according  to  the  usual  course  of 
things,  from  the  breach  of  the  contract. 

But  we  do  not  think  that  the  facts  and  cir- 
cumstances of  the  case  before  us  bring  it 
under  the  first,  but  on  the  contrary,  for  rea- 
sons that  will  be  stated  below,  we  think  it 
clearly  falls  under  the  second,  of  the  alterna- 
tive heads  in  Hadley  v.  Baxendale,  and  that 
the  plaintiffs  were  entitled  to  recover  such 
damages  as  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  the  parties 
at  the  time  they  made  the  contract,  as  the 
probable  result  of  the  breach  of  it. 

The  proposition,  as  thus  stated,  is  fully 
sustained  by  an  abundance  of  authority. 
Ward  V.  Railroad  Co.,  47  N.  Y.  29;  Scott  v. 
Steamship  Co.,  lOG  Mass.  468;  Sedg.  Dam. 
(6th  Ed.)  79;  Id.  note,  81;  Field,  Dam.  §  37.5; 
Grifnn  v.  Colver,  16  N.  Y.  489;  Cutting  v. 
Railway  Co.,  13  Allen,  381. 

In  view  of  the  doctrine  as  settled  by  these 
authorities,  it  may  be  safely  said  that  if  a 
common  carrier  is  chargeable  with  knowledge 
that  the  article  carried  is  intended  for  the 
market,  and  unreasonably  delays  its  delivery, 
and  there  is  a  depreciation  in  the  market  val- 
ue of  the  article  at  the  place  of  consignment, 
between  the  time  it  ought  to  have  been  deliv- 
ered and  the  time  it  was  in  fact  delivered, 
such  depreciation  will,  in  the  absence  of  any 
special  contract,  constitute  the  measure  of 
damages. 

Was  the  carrier  chargeable  with  such  no- 
tice in  this  case?  We  think  he  was.  The 
anxiety  of  the  plaintiffs  to  obtain  quick  time 
on  their  shipments  of  eggs,  which  was  com- 
municated to  the  defendants'  agent,  shows 
that,  for  some  reason,  they  regarded  "time" 
as  an  important  element  in  the  shipments. 
The  agent,  for  some  reason,  appreciated  the 
necessity  for  quick  time  in  the  contemplated 
shipments;  named  a  time  within  which  he 
could  carry  tlie  eggs  over  his  part  of  the 
route,  and  requested  to  be  kept  advised  by 
telegraph,  so  that  he  might  give  the  eggs  his 
special  attention  when  they  reached  the  point 
at  which  he  was  to  receive  them.  Why  th"s 
preconcerted  arrangement?  With  the  knowl- 
edge of  business,  which  their  avocations  m'Tst 
have  put  them  in  possession  of.  both  parties 
knew  that  when  large  quantities  of  eggs 
were  being  sliipped  to  a  great  city,  they 
were  usually,  if  not  always,  intended  for  the 
market  at  such  city.  And  the  reason  why 
both  parties  recognized  the  necessity  of  quick 
time  in  the  transportation  of  the  article,  was 


340 


DAMAGES  IN  ACTIONS  AGAINST  OAIIRIERS. 


that  they  undoubtedly  knew  that  in  this 
country  the  marliet  value  of  eggs  was  liable 
to  decline  at  the  season  of  the  year  in  which 
the  shipment  was  made  in  this  case,  and  the 


damages  consequent  upon  such  a  decline 
must  have  been  in  the  contemplation  of  both 
parties  at  the  time  the  contract  was  made. 
Motion  overruled. 


CAKIJIEKS  OF  c;i)01>S. 


341 


McGregor  et  al.  v.  kilgore. 

(6  Ohio,  359.) 
Supreme  Court  of  Ohio.     Dec.  Term,  1834. 

This  cause  was  adjoiirued  in  Hamilton 
county.  It  came  before  the  court  upon  a 
special  verdict.  The  action  was  case  upon 
a  bill  of  lading,  dated  July  5,  1832,  for  cer- 
tain parcels  of  merchandise  consigned  to  the 
plaintiffs,  shipped  on  board  the  steamboat 
Chesapeake,  to  be  delivered  at  Cincinnati  in 
good  order  (the  danger  of  the  river  alone 
excepted);  "but  in  case  of  the  water  not 
admitting  the  boat  to  proceed  to  Louisville, 
the  owners  of  the  goods  to  pay  the  expense 
of  reshippiug  to  that  place  from  the  point 
Avhere  they  are  reshipped,  and  the  captain 
agrees  they  shall  be  forwarded  without  any 
delay."  Breach,  that  through  the  careless- 
ness and  negligence  of  the  defendant,  the 
goods  were  los,t. 

Plea,  not  guilty;  notice  that  the  low  water 
would  not  permit  the  boat  to  go  up  to  Lrouis- 
ville,  and,  therefore,  the  goods  were  landed 
at  Trinity,  near  the  mouth  of  the  Ohio,  and 
were  injured  after  they  were  so  landed.  The 
jury  returned  a  special  verdict,  finding: 

(1)  The  execution  of  the  bill  of  lading,  the 
shipment  of  a  caslx  of  cutlery  to  be  delivered 
in  Cincinnati  according  to  the  bill  of  lading, 
and  the  delivery  of  the  cask  in  an  injured 
state  at  Cincinnati. 

(2)  That  the  amount  of  the  injury  upon  the 
sterling  cost  and'  insurance  is  .$419.24;  the 
amount  exclusive  of  insurance,  $389.24;  the 
amount,  adding  sixty  per  cent,  to  the  ster- 
ling cost,  $622.78;  the  amount,  predicated  on 
the  value  at  Cincinnati,  and  the  proceeds  of 
sale,  $789.58. 

(3)  That  the  said  cask  of  cutlery  was  land- 
ed at  Trinity,  at  the  mouth  of  the  Ohio,  and 
left  in  charge  of  the  defendant,— the  boat 
having  returned  to  New  Orleans,— was  pla- 
ced under  a  temporary  shed  erected  for  the 
purpose,  near  the  river,  and  several  days 
afterward,  while  the  boat  hands  were  at- 
tempting to  remove  it  to  another  place  of  de- 
posit adjoining,  the  cask,  being  large  and 
heavy,  slipped  away  from  the  workmen,  and 
rolled  into  the  Ohio  river,  and  damaged  the 
goods  by  the  wetting. 

And  if  upon  these  facts  the  coiu't  is  of 
opinion  the  law  arising  is  with  the  plaintiffs, 
they  find  the  defendant  guilty,  and  assess 
the  plaintiffs'  damages  to  the  amount  of 
either  of  the  sums  returned,  which  in  law 
is  the  true  rule  of  damages,  with  interest  to 
be  counted  and  added  as  in  law  is  right.  But 
if  the  court  shall  be  of  the  opinion  that,  upon 
the  facts  there  is  no  legal  right  in  the  plain- 
tiff to  recover,  then  the  jury  find  the  defend- 
ant not  guilty. 

It  was  a  conceded  matter  at  the  trial  that 
the  goods  were  landed  because  the  water  in 
the  Ohio  river  was  too  low  for  the  Ohesa- 
lieake  to  ascend  to  Louisville. 

After  the  goods  were  landed  at  Trinity,  the 


defendant  Avrote  to  the  plaintiffs  notifying 
them  of  the  fact,  and  asking  advice  as  to 
the  shipment  up.  The  following  answer  was 
sent  to  the  letter: 

"Cincinnati,  August  14,  1832. 

"Capt.  Kilgore — Dear  Sir:     Your  favor  of 

the  instant,  came  duly  to  hand.     You 

wish  to  know  if  you  shall  forward  our 
freight  to  Louisville  at  fifty  cents  per  one 
hundred  pounds. 

"We  do  not  wish  it  sent  at  such  a  high 
freight.  There  is  now  a  rise  of  water  which 
will  enable  any  of  the  common  boats  to  get 
to  Louisville  with  considerable  freight  on 
board.  Our  loading  is  of  such  a  heavy  na- 
ture as  will  not  allow  the  present  high  rates 
of  freight.  You  will  please  to  send  it  up  as 
soon  as  you  think  the  freight  is  at  as  low 
a  rate  as  it  will  be  at  before  the  fall  rise- 
say,  twenty  or  twenty-five  cents  per  one  hun- 
dred pounds  to  Louisville.  We  are  not  very 
much  in  want  of  it.  We  hope  there  is  no 
additional  expense  accrued  at  Trinity  on  the 
goods. 

"We  understand  there  was  some  of  our 
freight  sent  to  Louisville  some  time  ago;  say, 
when  the  Chesapeake  arrived  last.  We  have 
not  yet  received  it,  nor  have  we  heard  from 
it.  We  hope,  however,  that  the  present  rise 
of  water  will  enable  you  to  forward  all  the 
freight  at  fair  prices.  You  will  please  en- 
gage it  all  the  way  to  Cincinnati  if  you  can. 

"Respectfully,  your  most  obedient  servants. 
"J.  McGregor  &  Co." 

B.  Storer,  for  plaintiffs.  E.  S.  Haines,  for 
defendant. 

WRIGHT,  J.  It  was  not  contended  on  the 
trial  before  the  jury,  nor  is  it  now  insisted, 
but  the  water  in  the  Ohio  river  was  so  low 
when  the  Chesapeake  arrived  at  its  mouth 
as  not  to  admit  of  her  proceeding  to  Louis- 
ville. There  was  no  dispute  then,  nor  is 
there  any  now,  that  the  letter  in  evidence 
was  written  by  the  plaintiffs  to  the  defend- 
ant, and  received  by  him  at  Trinity  after 
the  goods  were  landed  there.  I  therefore 
take  these  two  facts  as  a  part  of  this  case, 
though  not  included  in  the  finding  of  the 
jury. 

The  bill  of  lading  was  a  contract  to  carry 
from  New  Orleans  to  Cincinnati,  and  deliver 
to  the  plaintiffs  there  in  good  order,  with  privi- 
lege to  the  carrier  in  the  case  of  low  water  to 
reship  for  Louisville  in  some  other  craft,  and 
charge  the  increased  expense  of  such  reship- 
ment  to  the  consignee.  The  first  point  pre- 
sented, it  appears  to  us,  is,  did  the  landing  of 
these  goods  at  Trinity  in  order  for  their  re- 
shipment,  put  an  end  to  the  defendant's  con- 
nection with  them  as  carrier  under  the  con- 
tract, and  convert  him  into  a  warehouse  keep- 
er and  forwarder?  There  seems  no  necessity 
for  inquiring  into  the  custom  of  the  river 
when  goods  are  transshipped,  to  land  and 
protect  them  by  temporary  warehouses,  if 
none  other  can  be  had,  until  a  suitable  craft 


342 


DAMAGES  IN  ACTIONS  AGAINST  CARRIERS. 


arrive  to  take  the  lading  up  the  river.  The 
bill  of  lading  gave  the  carrier  the  privilege  of 
forwarding  the  goods  on  other  craft  than  that 
in  which  they  were  shipped  in  one  event,  and 
it  seems  to  ns  the  right  to  land  may  be  con- 
ceded as  incident  to  the  shipment  without  at 
all  affecting  the  questions  before  the  court. 
It  was  but  a  privilege  to  the  carrier,  in  the 
execution  of  his  contract  to  convey  and  de- 
liver, inserted  for  his  own  benefit,  to  secure 
him  the  advantage  of  as  great  a  portion  of  the 
freight  as  he  could  earn,  and  to  throw  upon 
the  owner  any  increase  of  expense.  The  re- 
lation of  carrier  continues  from  the  shipment 
of  the  goods  until  their  arrival  at  their  des- 
tined port  and  delivery,  unless  that  relation 
has  been  interrupted  by  some  act  of  the  owner 
or  consignee.  In  that  possible  view  of  the 
ease  the  letter  alluded  to  was  read  in  evi- 
dence. It  is  now  claimed  that  that  letter  con- 
stituted the  defendant  the  agent  of  the  plain- 
tiffs, and  put  an  end  to  his  duties  as  carrier. 
There  is  nothing  in  the  case,  and  there  was  no 
evidence  on  the  trial,  to  show  that  this  letter 
was  received  by  the  defendant  before  the 
accident  to  the  goods.  If,  therefore,  the  re- 
ceipt of  tlie  letter  was  admitted  to  affect  what 
the  defendant  urges,  a  state  of  things  is  not 
shown  in  this  case  in  which  the  letter  can 
bear  upon  the  injury.  The  utmost  that  could 
be  claimed  for  this  letter,  if  received  before 
the  jury,  would  be  to  exonerate  the  carrier 
from  injury  while  the  goods  were  detained, 
under  the  letter,  for  lower  rates  of  freight. 
It  cannot  reach  back  to  influence  an  injury 
which  the  goods  received  immediately  after 
they  were  landed,  and  before  the  letter  was 
received,  or  perhaps  written.  The  defendant 
had  these  goods,  as  carrier,  when  they  were 
injured,  and  is  subject  to  the  law  of  carriers. 
"A  common  carrier  warrants  the  safe  de- 
livery of  goods  in  all  but  the  excepted  cases 
of  the  act  of  God  and  public  enemies."  El- 
liott V.  Rossell,  10  Johns.  7.  A  cari'icr,  in 
taking  freight,  is  bound  to  use  sound  and 
proper  hands  and  machinery  for  lading  and 
unlading,  and  the  safe  handling  and  removing 
the  goods;  and  if  loss  ensue  from  the  failure 
in  any  particular,  the  carrier  must  bear  it. 
Abb.  Shipp.  2.59;  1  Wils.  282;  1  Doug.  278. 
The  injury  in  this  case  resulted  from  the  want 
of  machinery  to  remove  heavy  articles,  or  the 
carelessness,  inattention,  or  want  of  strength 
in  the  hands  employed. 

It  remains,  then,  only  to  inquire  into  the 
proper  rule  of  damages  in  the  case.  The  goods 
were  delivered  at  Cincinnati  in  an  injured  con- 


dition. The  carrier  earned  full  freight  for  their 
transportation.  It  would  seem  to  be  the  dic- 
tate of  natural  justice  that  the  person  liable 
for  their  safe  delivery  should  make  good  to 
the  owner  the  injury  they  sustained  while 
under  his  care  and  control.  The  owner  was 
entitled  to  the  goods  at  Cincinnati  in  their 
perfect  state.  But  for  the  act  of  the  de- 
fendant he  would  have  had  them  in  that  con- 
dition. The  carrier,  in  case  he  deliver  the 
goods  at  the  port  of  delivery,  earns,  and  is  en- 
titled to  demand  full  freights,  notwithstand- 
ing they  have  been  partially  injured,  and  the 
consignee  must  look  to  his  bill  of  lading  for 
indemnity.  In  New  York  the  rule  is  estab- 
lished that  the  measure  of  damage  is  the 
value  of  the  goods  at  the  port  of  delivery. 
Amory  v.  McGregor,  1.5  .Johns.  38;  Bracket 
V.  McNair,  14  Johns.  171.  The  supreme  court 
of  Pennsylvania,  upon  full  examination,  held 
it  best  to  remove  from  the  carrier  all  temp- 
tations to  fraud,  and  that  was  best  done  by 
making  him  liable  for  the  value  of  goods  lost 
at  the  place  of  delivery,  and  estabhshed  that 
as  the  rule  of  damages  in  such  cases,  founded 
upon  autliority,  general  convenience,  and  good 
policy.  Gillingham  v.  Dempsey,  12  Serg.  & 
R.  186.  These  authorities  are  not  shaken  by 
those  cited  by  the  defendant.  We  tliiuk  this 
is  obviously  tlie  rule  of  law  and  justice.  The 
jury  have  returned  two  valuations  looking  to 
this  point: 

(,1)  The  value,  adding  sixty  per  cent,  to  the 
sterling  cost,  as  the  usual  mercantile  estimate 
in  Cincinnati,  to  cover  the  charges,  freight, 
and  insurance  from  Liverpool. 

•(2)  The  actual  value  of  the  goods  in  Cincin- 
nati, deducting  therefrom  the  proceeds  of 
the  goods,  sold  in  their  injured  condition. 

Which  of  these  furnishes  the  rule  of  dam- 
ages is  the  question?  The  first  is  the  usual 
mode  of  ascertaining  the  net  cost  of  such 
goods  in  Cincinnati.  In  the  absence  of  oth- 
er evidence,  that  would  be  taken  as  the  value 
of  the  goods.  But  when  the  actual  value  is 
found,  the  supposed  or  presumed  value 
yields.  That  is  the  case  here,  the  jury  have 
assessed  the  damages,  as  predicated  on  the 
actual,  as  well  as  the  supposed  value,  the- 
actual  value  measures  the  real  injury,  and  is 
the  rule  of  damage. 

Judgment  for  the  plaintiff  for  that  sum. 
with  interest. 

NOTE.  See,  also.  Hadley  v.  Baxendale,  ante. 
IKi;  Thomas,  Bagley  &  W.  Mf.tr.  Co.  v.  Wa- 
bash.  St.  L.  &  P.  Ry.  Co.,  ante,  14't;  and 
]\I:itber  v.  Express  Co.,  ante,  135. 


CAKlllEKS    OF    I'AS^SEXGEKS. 


olo 


BKOWN  ot   ux.   V.   CHICAGO,   ^l.   Sc   ST.   P. 
II Y.  CO. 

(11  N.  W.  356.  911,  &4  Wis.  342.) 
Supreme  Court  of  Wisconsiu.     Jan.  10,  1882. 
Appeal  from  circuit  court,  .Tuueiiu  county. 
D.  S.  Wegg,  for  appellant.     J.  W.  Lusk,  for 
respondents. 

TAYLOR,  J.     The  cause  of  action  In  this 
case  Avill  be  best  stated  by  giving  a  copy  of 
the    complaint,    which    sets    forth    fully    the 
facts  upon  which  a  recovery  is  sought.    After 
stating   the   incorporation   of  the   defendant, 
and  alleging  that  it  was  a  common  carrier  of 
passengers  in  this  state,  it  proceeds  as  fol- 
lows:   "That  said  plaintiffs,  on  or  about  the 
second  day  of  October,  1879,  desired  to  go  to 
Mauston,  aforesaid,  from  the  said  village  of 
Kilbourn  City,  and  for  that  purpose  bought 
and  paid  about  $2.30  for  tickets  at  Kilbourn 
City,   from  the  agent  of  said   defendant,   to 
convey  said  plaintiffs  to  Mauston  and  return 
to  Kirbourn  City,  whereby  it  became  the  duty 
of  said  defendants,  as  carriers  of  passengers, 
to   carry   the   said   plaintiffs    from   Kilbourn 
City    to    Mauston    in    their    passenger    train 
which  left  Kilbourn  City  to  go  to  Mauston 
at  about  6:20  p.  m.  of  said  day,  and  to  treat 
said  plaintiffs  in  a   respectful   manner,    and 
carry  them  to  the  proper  and  usual  landing 
place  at  Mauston,  to  wit,  the  depot  of  said 
defendant  at  said  place.     That  the  said  de- 
fendant wholly  disregarded  its  said  duty  in 
the  premises,   and   its   contract  and   obliga- 
tions to  and  with  said  plaintiffs,  and,  when 
about  three  miles  east  of  the  depot  of  the  de- 
fendant at  the  said  village  of  Mauston,   in- 
formed said  plaintiffs,  by  its  proper  agents 
and  servants,  that  they  had  arrived  at  Maus- 
ton,  aforesaid,   and   stopped    the    ti'ain    for 
them  to  get  off.     That  said  plaintiffs,   sup- 
posing   and    believing    they    had    arrived    at 
Mauston,  as  they  were  informed  they  had  by 
the  defendant's  servants,  as  aforesaid,  alight- 
ed from  the  defendant's  train,  and  the  said 
train  passed  on.     That  after  said  train  had 
left  them  they  perceived  that  they  were  not 
at   the    Mauston    depot,    and    did    not    know 
where  they  were.     That  it  was  quite  dark. 
That  they  supposed  and  believed  that  they 
were  near  the  Mauston  depot,  and  proceeded 
up  the  track  in  the  direction  of  Mauston.  as 
they  supposed,  expecting  in  a  few  moments 
to  arrive  at  the  Mauston  depot.     That,    in- 
stead of  being  near  the  Mansion  depot,  they 
found  afterwards  they  were  not.  but,  on  the 
contrary,  had  been  carelessly  and  negligently 
put  off  the  defendant's  train  by  its  servants 
about  three  miles  east  of  said  depot,  appar- 
ently in  the  country;  and  the  plaintiffs  knew 
not  otherwise,  but  supposed  and  believed  that 
they  had  got  to  walk  west  on  the  track  of  the 
defendant  until  they  came  to  some  station. 
After  walking  on  the  track  of  the  defendant 
about  three  miles  they  came  to  the  said  vil- 
lage of  Mauston;    the  said  plaintiff  Mary  A. 


Brown  being,  by  reason  of  said  long  walk, 
very  tired  and  exhausted,  sick  and  prostrated, 
passing  the  balance  of  the  night  in  a  very 
restless,  uneasy,  and  feverish  condition. 
That  previous  to  the  said  second  day  of  Oc- 
tober, 1879,  and  leaving  Kilbourn  City,  as 
aforesaid,  the  said  plaintiff  Mary  A.  Brown 
had  been  a  healthy,  Avell,  and  robust  person, 
and  at  the  time  of  taking  said  walk  was 
pregnant  with  child.  That  in  consequence 
of  being  carelessly  and  negligently  put  off  the 
cars  of  the  defendant,  as  aforesaid,  and  her 
said  walk,  she  became  sick,  ailing,  and  very 
much  enfeebled,  and  continued  getting  Avorse, 
although  using  the  best  of  care  and  medical 
attendance,  until  about  December  20,  1879, 
when  she  lost  her  child.  That  for  a  long 
time  the  said  plaintiff'  :Mary  A.  Brown  was 
seriously  and  dangerously  ill,  so  much  so  that 
her  life  was  greatly  endangered  and  de- 
spaired of,  and  she  suffered,  had  sulfered, 
continued  to  suffer,  great  pain  in  body  and 
mind;  and  the  said  plaintiff  Orange  Brown, 
her  husband,  suffered  personally  great  anx- 
iety of  mind,  and  was  put  to  great  expense 
and  trouble  in  care,  nursing,  help,  and  medi- 
cal attendance  and  medicines." 

The  defendant's  answer  was  a  general  de- 
nial only.  In  the  court  below  the  plaintiffs 
recovered,  among  other  things,  for  the  al- 
leged injury  to  Mrs.  Brown. 

Upon  this  appeal  the  learned  counsel  for 
the  railway  company  insist  that  the  damages 
claimed  for  the  sickness  of  the  wife,  and  for 
her  medical  attendance  and  care,  are  too  re- 
mote to  constitute  a  cause  of  action,  and  that 
it  was  error  on  the  part  of  the  court  beloAV 
not  to  take  that  part  of  the  case  from  the 
jury. 

The  first  position  taken  by  the  learned 
counsel  for  the  appellant  is  that  the  cause  of 
action  set  out  in  the  plaintiffs'  complaint  is 
for  a  breach  of  contract,  and  not  an  action 
in  tort.  Upon  this  point  we  cannot  agree 
with  the  appellant.  We  think  the  gravamen 
of  the  action  is  the  negligence  and  careless- 
ness of  the  appellant's  agents  and  employes 
in  directing  the  plaintiffs  to  leave  the  train 
before  they  had  arrived  at  the  end  of  their 
journey.  They  did  not  leave  at  a  place  short 
of  their  destination  knowing  that  fact,  but 
through  the  neglect  of  the  appellant's  em- 
ployes they  were  induced  to  leave  the  train 
short  of  their  journey's  end,  supposing  that 
they  had  reached  it.  It  is  true,  the  plaintiffs 
in  their  complaint  state  that  they  paid  their 
fare  and  went  on  board  the  train  as  passen- 
gers, to  be  carried  from  one  point  to  another 
upon  the  appellant's  road,  and  that  by  reason 
of  such  payment  and  entry  upon  that  train  it 
became  the  duty  of  the  appellant  to  carry 
them  from  the  point  of  starting  to  their  des- 
tination. These  facts  are,  perhaps,  sufficient 
to  constitute  a  contract  on  the  part  of  the 
appellant  to  safely  carry  them  to  their  des- 
tination. Still,  it  is  necessary  in  all  actions 
against  a  carrier  of  passengers  to  state  facts 
which  show  the  right  of  the  party  to  be  car- 


3U 


DAMAGES   IN  ACTIONS  AGAINST  CAEKIERS. 


ried  before  he  can  complain  of  any  breach  of 
duty  on  the  pai-t  of  the  carrier  in  not  convey- 
ing them  safely,  or  in  not  carrying  them  to 
their  destination.  The  complaint  in  this  case 
is  not  so  much  that  the  plaintiffs  wore  not 
carried  to  their  destination,  but  that  on  the 
way  the  appellant's  employes  carelessly  and 
negligently  induced  them  to  quit  the  train 
before  they  arrived  at  their  destination,  and 
that  in  consequence  of  such  wrong  on  the 
part  of  the  appellants  they  suffered  damage. 
It  is  the  negligence  in  putting  the  plaintiffs 
off  the  train  before  the  journey  was  com- 
pleted which  is  complained  of,  and  not  a 
breach  of  the  contract  for  not  carrying  them 
to  the  end  of  their  journey. 

We  see  no  reason  for  distinguishing  this 
case  from  the  class  of  cases  which  hold  a 
railway  company  liable  in  tort  for  an  injury 
done  to  a  passenger,  while  traveling  on  a 
train,  caused  by  collision,  the  breaking  down 
of  a  bridge,  or  from  any  defect  in  the  road 
or  cars.  All  these  matters  are  a  breach  of 
the  contract  to  carry  the  passenger  safely, 
3'et  the  carrier  is  held  liable,  in  an  action  of 
tort,  for  any  injury  sustained,  basyd  upon  the 
allegation  that  it  was  incurred  through  the 
carelessness  and  negligence  of  the  company. 
All  the  cases  hold  that  the  person  injured 
through  the  negligence  or  carelessness  of  the 
carrier  may  proceed  either  upon  contract,  al- 
leging the  careless  or  negligent  acts  of  the 
defendant  as  a  breach'  of  the  contract,  or  he 
may  proceed  in  tort,  making  the  carelessness 
and  negligence  of  the  company  the  ground  of 
his  right  of  recovery;  and  if  he  proceed  for 
the  tort  it  becomes  necessary  on  the  part 
of  the  plaintiff  to  show  that  he  stands  in  the 
relation  of  a  passenger  of  the  carrier,  in  or- 
der to  show  his  right  to  recover  damages  for 
the  negligence  of  the  carrier  in  not  dischar- 
ging his  duty  in  carrying  him  safely.  Where 
the  relation  of  passenger  and  carrier  exists, 
the  law  fixes  the  duty  of  the  carrier  towards 
the  passenger,  and  any  violation  of  that  duty 
is  a  wrong;  and  if  Injury  occurs  to  the  pas- 
senger from  such  wrong,  the  carrier  is  respon- 
sible and  must  make  good  the  damage  result- 
ing therefrom.  Wood  v.  Railway  Co.,  32  Wis. 
398;  Walsh  v.  Railway  Co.,  42  Wis.  23; 
Craker  v.  Railway  Co.,  36  Wis.  657-675,  and 
cases  cited.  In  this  case  we  deem  it  material 
to  determine  whether  the  action  is  an  action 
for  a  tort,  or  an  action  for  a  breach  of  the 
contract  to  carry  the  plaintiffs  to  their  desti- 
nation, because  we  think  the  rules  of  dam- 
ages in  the  two  actions  are  essentially  differ- 
ent. We  hold  that  the  action  in  this  case  is 
based  upon  the  tort  of  the  defendant  in  neg- 
ligently and  carelessly  directing  the  plain- 
tiffs to  leave  the  cars  before  they  reached 
their  destination. 

The  plahitiffs  claim,  and  the  evidence 
shows,  that  they  and  their  child,  about  seven 
years  old,  were  directed  to  leave  the  cars,  by 
the  brakeman,  at  a  place  some  three  miles 
east  of  Maustou,  being  told  at  the  time  that 
it  was  Mauston,   their  place  of  destination. 


When  they  left  the  cars  it  was  night;  it  was 
cloudy,  and  had  rained  the  day  before;  that 
there  was  a  freight  train  standing  on  a  side 
track  where  they  were  put  olT  the  train;  no 
platform,  and  no  lights  visible  except  those 
on  the  freight  train;  that  plaintiffs  soon  as- 
certained that  they  were  not  at  Mauston,  and 
did  not  know  where  they  were.  They  did 
not  see  the  station-house,  although  there  was 
one,  but  it  was  hid  from  their  view  by  the 
freight  train  standing  on  the  side  track.  They 
supposed  they  were  at  a  place  two  miles  east, 
where  the  train  sometimes  stopped,  but  where 
there  was  no  station-house.  They  started 
west  on  the  track  towards  Mauston,  expect- 
ing to  find  a  house  where  they  might  stop, 
but  did  not  find  one  until  they  came  to  the 
bridge,  about  a  mile  east  of  Mauston,  and 
then  they  thought  it  easier  to  go  on  to  Maus- 
ton than  seek  shelter  at  the  house,  which  was 
a  considerable  distance  from  the  track.  They 
Avent  on  to  Mauston  and  arrived  there  late  at 
night,  Mrs.  Brown  quite  exhausted  from  the 
walk.  She  was  pregnant  at  the  time.  She 
had  severe  pains  during  the  night,  and  the 
pains  continued  from  time  to  time,  and  after 
a  few  days  she  commenced  flowing.  The 
pains  and  flowing  continued  until  some  time 
in  December,  when  a  miscarriage  took  place, 
after  Avhich  inflammation  set  in,  and  for  some 
time  she  was  so  sick  that  she  was  in  immi- 
nent danger  of  dying.  The  plaintiffs  claim 
that  the  miscarriage  and  subsequent  sickness 
were  all  caused  by  the  walk  Mrs.  Brown  was 
compelled  to  take  to  get  from  the  place  where 
they  Avere  left  by  the  train  to  Mauston. 

The  important  question  in  the  case  is 
whether  the  appellant  is  liable  for  the  injury 
to  Mrs.  Brown,  admitting  that  it  was  caused 
by  her  walk  to  Mauston.  Whether  the  sick- 
ness of  Mrs.  Brown  was  caused  by  the  walk 
to  Mauston  was  an  issue  in  the  case,  and  the 
jury  have  found  upon  the  evidence  that  it 
was  caused  by  the  walk.  There  is  certainly 
some  evidence  to  sustain  this  finding  of  the 
jury,  and  their  finding  is,  therefore,  conclu- 
sive upon  this  point.  Admitting  that  the 
walk  caused  the  miscarriage  and  sickness  of 
the  plaintiff  Mrs.  Brown,  it  is  insisted  by  the 
learned  counsel  for  the  appellant  that  the 
appellant  is  not  liable  for  such  injury;  that 
it  is  too  remote  to  be  the  subject  of  an  ac- 
tion; that  the  negligence  and  carelessness  of 
the  defendant's  employes  in  putting  the  plain- 
tiffs oft"  the  cars  at  the  place  they  did  was 
not  the  proximate  cause  of  the  miscarriage 
and  sickness,  and  for  that  reason  the  appel- 
lant company  is  not  liable  therefor. 

To  sustain  this  position  of  the  learned  coun- 
sel for  the  appellant  reliance  is  placed  upon 
the  case  of  Walsh  v.  Railway  Co.,  42  Wis.  23, 
and  it  is  insisted  that  there  can  be  no  real 
distinction  made  between  that  case  and  this. 
Upon  a  careful  examination  of  that  case  it 
will  be  seen,  we  think,  the  court  did  distin- 
guish between  an  action  which  was  purely 
an  action  for  a  breach  of  contract  and  one  in 
tort.     In  that  case  the  learned  circuit  judge 


CARRIERS   OF    I'ASSKXi JEKS. 


345 


charg-od  the  jurj^  <as  follows:  "If  you  find  that 
the  failure  to  return  to  Madison  on  the  day 
in  question,  at  the  time  agreed  upon  in  the 
contract,  was  caused  directly  by  orders  from 
the  headquarters  and  principal  manager  of 
the  railway  compan}%  made  with  the  full 
knowledge  that  the  plaintiff  and  the  other 
excursionists  were  I'eady  and  waiting  to  be 
carried  home  according  to  the  arrangement 
made  therefor,  and  made  in  wilful  disregard 
of  the  rights  of  the  plaintiff  and  the  other 
excursionists,  subordinating  their  rights  to 
the  convenience  of  the  company,  when  they 
had  the  means  at  hand  readily  to  have  ful- 
lilled  their  duty;  in  short,  that  the  conduct 
of  the  company  w^as  wilful  and  oppressive, — 
then  you  may  give  full  compensatory,  tliough 
not  punitive,  damages,  embracing  such  loss 
of  time,  such  injury  to  health,  such  annoy- 
ance and  vexation  of  mind,  and  such  mental 
distress  and  sense  of  wrong  as  you  find  was 
the  immediate  result  of  the  misconduct,  and 
must  necessarily  and  reasonably  have  been 
expected  to  arise  therefrom  to  the  plaintiffs 
as  one  of  the  excursionists."  This  instruc- 
tion was  excepted  to,  and  this  court  held  the 
instruction  erroneous,  and  reversed  the  judg- 
ment for  that  cause. 

The  present  chief  justice,  who  wrote  the 
opinion  in  the  case,  takes  special  pains  to 
show  that  the  action  was  based  solely  upon  a 
breach  of  contract,  and  Avas  in  no  sense  an 
action  of  tort,  and  he  expressly  declares  that 
the  rule  of  damages  is  not  tlie  same  where  the 
action  is  for  a  breach  of  contract  as  for  a 
tort.  Upon  this  point  he  uses  the  following- 
language:  "It  will  be  seen  that  the  circuit 
court  was  requested  to  charge  that  the  plain- 
tiff was  only  entitled  to  recover  such  damages 
as  naturally  and  fairly  resulted  from  the 
in-each  of  contract,  but  could  not  recover  dam- 
ages for  the  disappointment  of  mind,  sense 
of  wrong,  or  injury  to  his  feelings  by  reason 
of  such  breach.  This  rule  the  learned  circuit 
judge  disaffirmed,  holding  that  if  the  conduct 
of  the  company  was  wilful  and  oppressive, 
then  such  injury  to  health,  annoj^auce,  and 
vexation  of  mind,  mental  distress,  and  sense 
of  wrong  as  were  the  immediate  result  of  the 
misconduct,  and  must  reasonably  have  been 
expected  to  arise  therefrom  to  the  plaintiff, 
were  proper  matters  to  be  considered  in  giv- 
ing compensatory  damages.  This  v/as  con- 
founding the  important  distinction,  so  far  as 
the  rule  of  damages  is  concerned,  between  an 
action  in  tort  and  one  upon  contract.  It  was, 
in  fact,  applying  to  this  case  the  rule  which 
was  laid  down  in  Craker  v.  Railway  Co.,  36 
Wis.  657,  in  an  action  for  a  tort  committed 
by  an  agent  of  the  company.  In  the  case  of 
Avrongs  the  jury  are  permitted  to  consider  in- 
jury to  feelings  and  many  other  matters 
Avhich  have  no  place  in  questions  of  damages 
for  a  breach  of  contract." 

The  chief  justice  then  quotes  at  large  from 
the  case  of  Hobbs  v.  Railway  Co.,  10  L.  R. 
Q.  B.  Ill,  with  approval.  In  that  case  the 
English  court  of  aiipeals  held  that  when  the 


railway  company  had  neglected  or  refused 
to  carry  the  plaintiffs  to  their  destination, 
and  they  were  compelled  to  get  out  at  a  sta- 
tion about  five  miles  from  it,  late  at  night, 
and  being  unable  to  get  a  conveyance  or  ac- 
commodation at  an  inn  they  walked  home  a 
distance  of  five  miles  in  the  rain,  and  the  wife 
caught  cold  and  was  sick  as  a  consequence  of 
the  walk  and  exposure,  they  covild  not  recover 
for  the  injury  to  the  wife.  It  Avould  seem, 
from  the  opinions  given  by  the  learned  judg- 
es in  the  Hobbs  Case,  that  they  treated  the  ac- 
tion as  an  action  upon  contract  and  not  an  ac- 
tion for  a  tort.  All  the  judges  speak  of  it  as 
an  action  to  recover  for  the  breach  of  contract 
to  carry  the  plaintiff's  to  their  destination. 

The  rule  as  to  what  damages  may  be  re- 
covered in  actions  for  breach  of  contract  is 
laid  down  by  this  court  in  the  case  of  Can- 
dee  V.  Telegraph  Co.,  34  Wis.  479,  cited  from 
Hadley  v.  Baxendale,  9  Exch.  341,  and  ap- 
proved. It  is  as  follows:  "Where  two  par- 
ties have  made  a  contract,  which  one  of  them 
has  broken,  the  damages  which  the  other 
ought  to  receive  in  respect  of  such  breach  of 
contract  should  be  either  such  as  may  fairly 
and  substantially  be  considered  as  arising 
naturally— that  is,  according  to  the  usual 
course  of  things— from  such  breach  of  con- 
tract itself,  or  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of 
both  parties,  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  the  breach  of 
it" 

The  latter  part  of  this  rule,  as  above  quot- 
ed, would  seem  to  cover  all  cases  of  breach 
of  contract;  for  it  must  be  presumed  that 
the  parties  would  reasonably  be  supposed  to 
have  contemplated  that  the  party  injured  by 
the  breach  of  the  contract  would  sustain  such 
damages  as  would  fairly  and  substantially,  in 
the  usual  course  of  things,  result  from  such 
breach.  And  so  it  is  often  said  that,  in  an 
action  for  a  breach  of  contract,  the  damages 
to  be  recoA'ered  are  such  as  may  reasonably 
be  supposed  to  have  been  in  the  contempla- 
tion of  both  parties  when  they  made  it. 
Under  this  rule  the  damages  w^hich  may  be 
recovered  in  an  action  for  the  breach  of  a 
contract  are  sometimes  more  remote  and  far- 
reaching  than  those  recoverable  for  a  tort. 

In  the  case  of  Richardson  v.  Chynoweth,  26 
Wis.  656,  is  an  illustration  of  the  rule.  In 
that  case  the  court  say:  "In  such  cases, 
where  the  controlling  party  is  advised  of  the 
special  purpose  of  the  thing  to  be  completed, 
and  of  the  damage  that  would  naturally  ac- 
crue from  failure  to  complete  it  at  the  speci- 
fied time,  and  in  view  of  this  expressly  stipu- 
lates to  finish  it  at  a  given  time,  there  is  no 
reason  Avhy  he  should  not  be  responsible  for 
such  damage  as  is  the  direct  natural  result 
of  his  failure,  even  though  beyond  the  mere 
difference  between  the  .contract  and  market 
price."  See  Shepherd  v.  Gaslight  Co.,  15 
Wis.  818;   Flick  v.  Wetherbee,  20"  Wis.  392. 

In  many  cases  of  breach  of  contract  the 
courts  have  by  their  decisions  established  a 


346 


L)A.MA(;i:S    IN   ACTIONS   AGAINST  CAUKIEKS. 


rule  of  damages  whieh  is  aiJiilieiible  to  all 
of.a  class.  lu  au  action  for  a  breach  of  cou- 
tract  to  pay  mouey  at  a  fixed  time,  the  dam- 
ages are  the  lawful  interest  on  the  money 
withheld,  from  the  time  it  was  payable  to  the 
date  of  the  judgment,  unluss  the  contract  ex- 
pressly stipulates  for  other  damages.  So,  in 
actions  for  a  breach  of  a  covenant  of  war- 
ranty of  title,  the  damages  are  limited,  ordi- 
narily, to  the  purchase  money  paid  and  in- 
terest. In  these  and  other  classes  of  cases 
the  damages  are  fixed  by  arbitrary  rules; 
but  still  the  general  rule  above  stated,  that 
the  damages  are  such  as  "would  reasonably 
be  supposed  to  have  been  contemplated  that 
the  party  injured  by  the  breach  of  the  con- 
tract would  sustain,"  would  apply  to  such 
eases;  for,  in  contracts  of  the  classes  above 
mentioned,  the  parlies  Avould  enter  into  them 
knowing  the  law  fixing  the  damages  for  the 
breach,  and  so  they  would  be  supposed  to 
have  contemplated  the  payment  of  such  dam- 
ages in  a  case  of  breach  and  no  other. 

In  the  case  of  Hobbs  v.  Railway  Co..  supra, 
the  learned  justices  state  the  rule  in  case  of 
breach  of  contract  in  more  concise  language. 
Tliey  say:  "Such  damages  are  recoverable  as  a 
man  when  making  the  contract  would  con- 
template would  flow  from  a  breach  of  it." 
Under  this  rule  it  was  held  In  the  Hobbs 
Case,  and  by  this  court  in  the  Walsh  Case, 
that  in  an  action  for  a  breach  of  contract  in 
failing  to  carry  a  passenger  to  his  destination 
damages  could  not  be  recovered  for  injury 
to  the  health,  annoyance,  and  vexation  of 
mind  and  mental  distress,  on  the  ground  that 
such  damages  were  not  such  as  the  parties 
making  the  contract  would  contemplate  as 
likely  to  result  from  its  breach. 

We  are  not  disposed  now  to  question  the 
correctness  of  the  decision  made  by  this  court 
in  the  case  of  Walsh  v.  Railway  Co.,  supra, 
limited  as  that  case  was  to  an  action  solely 
for  a  breach  of  contract.  In  such  cases  the 
M'ilfulness  of  the  party  in  refusing  to  fulfil 
the  contract  does  not  in  any  way  change  the 
rule  of  damages.  The  rule  as  to  the  damages 
in  actions  upon  contract  is  the  same  whether 
the  breach  be  by  mistake,  pure  accident,  in- 
ability to  perform  it,  or  Avhether  it  be  wilful 
and  malicious.  The  motives  of  the  party 
breaking  the  contract  are  not  to  be  inquired 
into.  1  Sedg.  Meas.  Dam.  439  et  seq.,  and 
cases  cited. 

The  rules  which  limit  the  damages  in  ac- 
tions of  tort,  so  far  as  any  general  rules  can 
be  established,  are  in  many  respects  different 
from  those  in  actions  on  contract.  The  gen- 
eral rule  is  that  the  party  who  commits  a 
trespass  or  other  wa'ongful  act  is  liable  for 
all  the  direct  injury  restilting  from  such  act, 
although  such  resulting  injury  could  not  have 
been  contemplated  as  a  probable  result  of  the 
act  done.  1  Sedg.  Meas.  Dam.  130,  note; 
Eten  V.  Luyster,  60  N.  Y.  252;  Hill  v.  Wiu- 
sor,  118  Mass.  2.j1;  Lane  v.  Atlantic  Works, 
111  Mass.  130;  Keenan  v.  Cavanaugh,  44  Vt. 
2()8;    Little  v.  Railroad  Co.,  m  Me.  239;    Col- 


lard  V.  Railway  Co.,  7  Hurl.  cV:  N.  79;  Hart 
V.  Railroad  Coi'p.,  13  Mete.  (Mass.)  99,  104: 
Wellington  v.  Oil  Co.,  104  Mass.  04;  Metallic 
Compression  Casting  Co.  v.  Fitchburg  R.  Co., 
109  ISIass.  277;  Sali:-bury  v.  Ilerchenroder, 
100  Mass.  458;  PerJey  v.  Railroad  Co.,  98 
Masa.  '11-1;  Kellogg  v.  Railway  Co.,  26  Wis. 
223;  Patten  v.  Railway  Co.,  32  Wis.  524,  and 
36  AVis.  413;  Williams  v.  Vanderbilt,  28  N. 
Y.  217;  Ward  v.  Vanderbilt,  34  How.  Prac. 
144;  Bowas  v.  Tow  Line,  2  Sawy.  21,  Fed. 
Cas.  No.  1,713.  These  cases,  and  many  more 
which  might  be  cited,  clearly  estaldish  the 
doctrine  that  one  who  commits  a  trespass  or 
other  wrong  is  liable  for  all  the  damage 
which  legitimately  flows  directly  from  such 
trespass  or  wrong,  whether  such  damages 
might  have  been  foreseen  by  the  wrong-doer 
or  not. 

As  stated  by  Justice  Colt  in  the  case  of 
Hill  V.  Wiusor,  118  Mass.  251:  "It  cannot 
be  said,  as  a  matter  of  law,  that  the  jury 
might  not  properly  find  it  obviously  probable 
that  injury  in  some  form  would  be  caused  to 
those  who  were  at  work  on  the  fender  by 
the  act  of  the  defendants  in  running  against 
it.  This  constitutes  negligence,  and  it  is  not 
necessary  that  the  injury,  in  the  precise  form 
in  which  it  in  fact  resulted,  should  have  been 
foreseen.  It  is  enough  that  it  now  appears 
to  have  been  a  natural  and  probable  conse- 
quence." 

In  the  case  of  Bowas  v.  Tow  Line,  supra. 
Judge  Hoffman,  speaking  of  the  rule  in  rela- 
tion to  damages  on  a  breach  of  contract,  as 
contrasted  with  the  rule  in  case  of  wrongs, 
says:  "The  effect  of  this  rule  is  more  often 
to  limit  than  to  extend  the  liability  for  a 
breach  of  contract,  although  sometimes, 
when  the  special  circumstances  under  which 
the  contract  was  made  have  been  communi- 
cated, damages  consequential  upon  a  breach 
made  under  those  circumstances  will  be 
deemed  to  have  been  contemplated  by  the 
parties,  and  may  be  recovered  by  the  defend- 
ant. But  this  rule,  as  Mr.  Sedgwick  re- 
marks, has  no  application  to  torts.  He  who 
commits  a  trespass  must  be  held  to  contem- 
plate all  the  damage  which  may  legitimately 
flow  from  his  illegal  act,  whether  he  may 
have  foreseen  them  or  not;  and  so  far  as  it 
is  iflainly  traceable  he  must  make  compensa- 
tion for  it." 

The  justice  and  propriety  of  this  rule  are 
manifest,  when  applied  to  cases  of  direct  in- 
jury to  the  person.  If  one  man  strike  an- 
other, with  a  weapon  or  with  his  hand,  he  is 
clearly  liable  for  all  the  direct  injury  the 
party  struck  sustains  therefrom.  The  fact 
that  the  result  of  the  blow  is  unexpected  and 
unusual  can  make  no  difference.  If  the 
M-rong-doer  should  in  fact  intend  but  slight 
injury,  and  deal  a  blow  which  in  ninety-nine 
cases  in  a  hundred  would  result  in  a  trifling 
injury,  and  yet  by  accident  produced  a  very 
grave  one  to  the  person  receiving  it,  owing 
either  to  the  state  of  health  or  other  acci- 
dental circumstances  of  the  party,  such  fact 


CARRIERS   OF    PASSPLXlJlOUS. 


347 


1 


would  uot  relieve  the  wroiig-doer  from  the 
consequences  of  his  act.  The  real  questiou 
iu  tliese  cases  is,  did  the  wrongful  act  pro- 
duce the  injury  complained  of?  and  uot 
whether  the  party  committing  the  act  would 
have  anticipated  the  result.  The  fact  that 
the  act  of  the  party  giving  the  blow  is  un- 
lawful renders  him  liable  for  all  its  direct 
evil  consequences. 

This  was  the  substance  of  the  decision  iu 
the  old  and  often-cited  squib  case  of  Scott  v. 
Sheplierd,  2  W.  Bl.  892.  Justice  Nares  there 
says  that  "the  act  of  throw'iug  the  squib 
being  unlawful,  the  defendant  w-as  liable  to 
answer  for  the  consequences,  be  the  injury 
mediate  or  immediate;"'  and  in  this  view^  of 
the  case  all  the  judges  agreed,  although  they 
differed  upon  the  question  as  to  the  form  of 
the  action. 

In  the  case  at  bar  the  question  to  be  de- 
termined is  whether  the  negligent  act  of  the 
defendant's  employes  in  putting  the  plaintiffs 
and  their  child  otf  the  train  in  the  night-time, 
at  the  place  where  they  did,  was  the  direct 
cause  of  the  injury  complained  of  by  the 
plaintiffs,  or  whether  it  was  only  a  remote 
cause  for  which  no  action  lies.  We  must 
in  considering  this  case  take  it  for  granted 
that  the  Avalk  from  the  place  wdiere  they  left 
the  cars  to  Mauston  was  the  immediate  cause 
of  the  injury  complained  of,  and  the  negli- 
gence of  the  defendant  in  putting  them  off 
the  cars  was  the  mediate  cause.  We  think 
the  question,  whether  there  was  any  negli- 
gence on  the  part  of  the  plaintiffs  in  taking 
the  walk,  was  properly  left  to  the  jury,  as  a 
question  of  fact,  and  they  found  that  they 
were  guilty  of  no  negligence  on  their  part. 
They  found  themselves  placed  by  the  wrong- 
ful act  of  the  defendant  where  it  became 
necessary  for  their  protection  to  make  the 
journey. 

The  fact  that  there  was  a  station-house  near 
by,  at  which  they  might  have  found  shelter 
until  anotlier  train  came  by,  is  not  conclusive 
that  the  plaintiffs  were  negligent  in  the  mat- 
ter. They  were  landed  at  a  place  where  they 
could  not  see  it,  and  the  jury  have  found 
that  under  the  circumstances  they  were  not 
guilty  of  negligence  iu  not  finding  it.  The 
defendant  must,  therefore,  be  held  to  have 
caused  the  plaintiffs  to  make  the  journey  as 
ihe  most  prudent  thing  for  them  to  do  under 
the  circumstauces.  And,  we  think,  uuder  the 
rules  of  law,  the  defendant  must  be  liable 
for  the  direct  consequence  of  the  journey. 
Had  the  defendant  wrongfully  placed  the 
plaintiffs  off  the  train  in  the  open  country, 
where  there  Avas  no  shelter,  in  a  cold  and 
stormy  night,  and,  on  account  of  the  state  of 
health  of  the  parties,  in  their  attempts  to  find 
shelter  they  had  become  exhausted  and  per- 
islied,  it  would  seem  quite  clear  that  the  de- 
fendant ought  to  be  liable.  The  wrongful 
act  of  the  defendant  would  be  the  natiu-al 
and  direct  cause  of  their  deaths,  and  it  would 
seem  to  be  a  lame  excuse  for  the  defendant, 
that  if  the  plaintiffs  had  been  of  more  robust 


health  tliey  would  not  liave  perished  or  have 
suffered  any  material  injury. 

The  defendant  is  not  excused  because  it  did 
not  know^  the  state  of  health  of  Mrs.  BroAvn, 
and  is  equally  responsible  for  the  conse- 
quence of  the  walk  as  though  its  emi:)loyeri 
had  full  knowledge  of  that  fact.  This  court 
expressly  so  held  in  the  case  of  Stewart  v. 
City  of  Ripon,  38  Wis.  584,  and  substanlially 
in  the  case  of  Oliver  v.  Town  of  La  Valle,  3G 
Wis.  592. 

Upon  the  findings  of  the  jury  in  tliis  case 
it  appears  that  the  defendant  was  guilty  of 
a  wrong  in  putting  the  plaintiffs  off  the  c-rs 
at  the  place  they  did;  that  in  order  to  pro- 
tect themselves  from  the  effects  of  sucli 
wrong  they  made  the  w^alk  to  Mauston;  that 
in  making  such  walk  they  were  guilty  of  no 
negligence,  but  were  compelled  to  make  it  on 
account  of  the  defendant's  wrongful  act;  and 
that  on  account  of  the  peculiar  state  of  health 
of  Mrs.  Brown  at  the  time  she  was  injured 
by  such  walk.  There  was  no  intervening  in- 
dependent cause  of  the  injury  other  than  the 
act  of  the  defendant.  All  the  acts  done  by 
the  plaintiffs,  and  from  which  the  injury 
flowed,  were  rightful  on  their  part,  and  com- 
pelled by  the  act  of  the  defendant.  We  think, 
therefore,  it  must  be  held  that  the  injury  to 
Mrs.  Brown  was  the  d-irect  result  of  the  de- 
fendant's negligence,  and  that  such  negli- 
gence was  the  proximate  and  not  the  remote 
cause  of  the  injury,  within  the  decisions 
above  quoted.  We  can  see  no  reason  why 
the  defendant  is  not  equally  liable  for  an  in- 
jury sustained  by  a  person  who  is  placed  in 
a  dangerous  position,  whether  the  injury  is 
the  immediate  result  of  a  wrongful  act,  or 
results  from  the  act  of  the  party  in  endeavor- 
ing to  escape  from  the  immediate  danger. 

When  by  the  negligence  of  another  a  per- 
son is  threatened  with  danger,  and  he  at- 
tempts to  escape  such  threatened  danger  by 
an  act  not  culpable  iu  itself  under  the  cir- 
cumstances, the  person  guilty  of  the  negli- 
gence is  liable  for  the  injury  received  in  such 
attempt  to  escape,  even  though  no  injury 
would  have  been  sustained  had  there  been 
no  attempt  to  escape  the  threatened  danger. 
This  was  so  held,  and  we  think  properly,  in 
the  case  of  a  passenger  riding  upon  a  stage- 
coach, who,  supposing  the  coach  would  be 
overturned,  jumped  therefrom  and  was  in- 
jured, altliough  the  coach  did  not  overturn, 
and  would  not  have  done  so  had  the  passen- 
ger remained  in  his  seat.  The  passenger  act- 
ed upon  appearances,  and,  not  having  acted 
negligently,  it  was  held  he  could  recover;  it 
being  shown  that  the  coach  was  driven  neg- 
ligently at  the  time,  which  negligence  pro- 
duced the  appearance  of  danger.  Jones  v. 
Boyce,  1  Starkie,  493.  The  ground  of  the 
decisions  is  very  aptly  and  briefly  stated  l)y 
Lord  Elleuborough  iu  the  case  as  follows: 
"If  I  place  a  man  in  such  a  situation  that  he 
must  adopt  a  perilous  alternative,  I  am  re- 
sponsible for  tjie  consequences." 

So  in  the  case  at  bar  the  defendant,   by 


348 


DAMAGES  IN  ACTIONS  AGAINST  CARRIERS. 


its  nofiligonce,  itlaccd  the  plaintiffs  in  a 
position  where  it  was  necessary  for  them  to 
act  to  atoid  the  conseciuences  of  the  wrong- 
ful act  of  the  defendant,  and,  acting  with 
ordinary  prudence  and  care  to  get  tliem- 
selvos  out  of  the  ditficulty  in  which  they 
had  been  placed,  they  sustained  injury. 
Such  injury  can  be,  and  is,  traced  directly 
to  the  defendant's  negligence  as  its  cause, 
and  it  is  its  proximate  cause,  within  the 
rules  of  law  upon  that  subject.  The  true 
meaning  of  the  maxim,  causa  proxima  non 
reniota  spectatur,  is  probably  as  well  de- 
fined by  the  late  Chief  Justice  Dixon  in  the 
case  of  Kellogg  v.  Puiilway  Co.,  supra,  as 
by  any  other  judge  or  court.  He  states  it 
as  follows:  "An  efficient  adequate  cause 
being  found,  must  be  considered  the  true 
cause,  unless  some  other  cause  not  incident 
to  it,  but  independent  of  it,  is  shown  to 
have  intervened  between  it  and  the  result." 

In  the  case  of  Railway  Co.  v.  Kellogg,  94 
U.  S.  4G9,  the  court  say:  "We  do  not  say 
that  even  the  natural  and  probable  conse- 
quences of  a  Avrongfal  act  or  omission  are 
.n  all  cases  to  be  chargeable  to  the  mis- 
feasance or  nonfeasance.  They  are  not 
when  there  is  a  sufficient  and  independent 
-cause  operating  between  the  wrong  and  in- 
jury. In  such  a  case  the  resort  of  the  suf- 
ferer must  be  to  the  origi'aator  of  the  inter- 
mediate cause.  But  when  there  is  no  in- 
termediate efficient  cause  the  original  wrong 
must  be  considered  as  reaching  to  the  effect, 
and  proximate  to  it.  The  inquiry  must, 
therefore,  always  be  whether  there  was  any 
intermediate  cause  disconnected  from  the 
primary  fault,  and  self-operating,  which  pro- 
duced the  injury.  *  *  *  In  the  nature  of 
things  there  is  In  every  transaction  a  suc- 
cession of  events,  more  or  less  dependent  up- 
on those  preceding,  and  it  is  the  province  of 
a  jury  to  look  at  this  succession  of  events 
or  facts  and  ascertain  whether  they  are  nat- 
urally and  probably  connected  with  each  oth- 
er by  a  continuous  sequence,  or  are  dis- 
severed by  new  and  independent  agencies, 
and  this  must  be  determined  in  view  of  the 
circumstances   existing   at  the   time." 

Within  this  definition  the  negligence  of  the 
defendant  was  the  proximate  cause  of  the 
injury  to  Mrs.  Brown,  as  there  was  no  other 
cause  not  incident  to  such  negligence  which 
intervened  to  cause  the  same. 

There  is,  I  think,  but  one  case  cited  by 
the  learned  counsel  for  the  appellant  which 
appears  to  be  in  direct  conflict  with  this 
view  of  the  case,  except  those  which  relate 
to  breaches  of  contract,  and  that  is  Car  Co.  v. 
Barker,  4  Colo.  344.  This  case  is,  we  think, 
unsustained  by  authority,  and  is  in  direct  con- 
flict with  the  decisions  of  this  court  in  the 
cases  of  Stewart  v.  City  of  Ripon  and  Oliver 
V.  Town  of  La  Valle,  supra.  This  decision  is, 
it  seems  to  me,  neither  supported  by  the 
principles  of  law  nor  humanity.  It  in  ef- 
fect says  that  if  an  individ\ial  unlawfully 
compels  a  sick  and  enfeebled  person  to  ex- 


pose himself  to  the  cold  and  storm  to  escape 
worse  consequences  from  his  wrongful  act, 
he  cannot  recover  damages  from  the  wrong- 
doer because  it  was  his  sick  and  enfeebled 
condition  which  rendered  his  exposure  in- 
jurious. Certainly  such  a  doctrine  does  not 
commend  itself  to  those  kinder  feelings 
which  are  common  to  humanity,  and  I  know 
of  no  other  case  which  sustains  its  conclu- 
sions. 

In  the  case  of  Sharp  v.  Powell,  L.  R.  7  C. 
P.  253,  the  defendant  was  not  held  liable  in 
an  action  of  tort  under  the  following  circum- 
stances: He  unlawfully  washed  a  van  in  the 
street,  and  the  water  ran  down  the  gutter 
towards  a  grating  leading  to  the  sewer.  In 
consequence  of  the  extreme  cold  weather  the 
grating  was  obstructed  with  ice,  so  that  the 
water  could  not  escape,  and  so  spread  out 
and  froze  over  the  causeway,  which  was 
badly  paved  and  rough,  and  there  froze. 
The  plaintiff's  horse,  while  being  led  past 
the  spot,  slipped  upon  the  ice  and  was  lamed. 
The  action  was  brought  to  recover  for  the 
injury  to  the  horse,  and  because  it  was 
shown  that  the  defendant  did  not  know  that 
the  grate  was  stopped  so  that  the  water 
could  not  escape,  he  was  held  not  liable. 
This  case  comes  within  the  rule  above  stat- 
ed; there  was  an  intervening  and  independ- 
ent agency  which  caused  the  forming  of  the 
ice  in  the  street,  and  the  consequent  injury, 
viz.  the  frozen  condition  of  the  grate,  of 
which  he  was  ignorant,  and  for  which  he 
was  in  no  way  responsible. 

The  cases  of  Rafiway  Co.  v.  Birney,  71  111. 
391.  and  Francis  v.  Transfer  Co.,  5  Mo.  App. 
7,  were  both  cases  similar  to  the  one  at  bar, 
but  both  cases  were  decided  in  favor  of  the 
defendants,  because  it  was  held  by  the  court 
that  the  plaintiffs,  after  being  wrongfully 
left  by  the  defendants  short  of  their  jour- 
ney's end,  were  guilty  of  gross  negligence 
in  their  manner  of  attempting  to  complete 
the  journey,  and  so  were  uot  entitled  to  re- 
cover. I  should  say,  from  the  reasoning  of 
the  judges  in  both  these  cases,  that  the 
judgment  Avould  have  been  for  the  plaintiffs 
had  there  been  no  fault  on  their  part,  and  an 
injury  had  occurred  to  them  in  prosecuting 
the  journey  not  arising  from  their  fault,  or 
the  fault  of  a  third  person. 

In  the  case  of  Phillips  v.  Dickerson,  S5  111. 
11,  the  defendant  was  doing  no  wrong  to 
the  plaintiff,  and,  so  far  as  the  case  shows, 
was  unconscious  of  her  existence  at  the 
time.    It  was  an  exceptional  case. 

It  would  extend  this  opinion  to  too  great 
length  to  undertake  any  review  of  the  al- 
most infinite  number  of  cases  in  Avhich  the 
question  of  remote  or  proximate  causes  is  dis- 
cussed. No  general  and  fixed  rule  can  be 
laid  down  to  govern  all  cases.  It  is  said  by 
the  supreme  court  of  the  United  States  in 
Railway  Co.  v.  Kellogg,  supra:  "The  true 
rule  is  that  what  is  the  proximate  cause  of 
an  injury  is  ordinarily  a  question  for  the 
jury.      It  is  not  a  question  of  science  or  legal 


CARRIEKS   OF   PASSENGERS. 


349 


knowledge.  It  is  to  be  detcrmiued  as  a 
fact,  ill  view  of  the  circumstances  of  fact  at- 
tending it."  And  similar  language  was  used 
by  this  court  in  the  case  of  Patten  v.  Rail- 
way Co.,  32  Wis.  524-535.  In  that  case  the 
present  chief  justice  says:  "At  all  events, 
we  thinli  the  question  was  properly  submit- 
ted to  the  jury  to  determine,  whether  under 
all  the  circumstances  the  failure  of  the  com- 
pany to  have  a  light  at  the  depot  on  the 
arrival  of  the  train  was  the  direct  and  proxi- 
mate cause  of  the  accident." 

We  think  that  all  the  objections  made  by 
the  learned  counsel  for  the  appellant  to  the 
right  of  the  plaintiffs  to  recover  for  the  in- 
jury to  the  health  of  Mrs.  Brown  were  over- 
ruled by  this  court  in  the  cases  of  Oliver  v. 
Town  of  La  Valle  and  Stewart  v.  City  of 
Ripon.  In  the  Oliver  Case  the  injury  com- 
plained of  was  like  that  in  the  case  at  bar. 
The  only  difference  in  the  two  cases  is  that 
in  the  Oliver  Case  the  evidence  connecting 
the  injury  with  the  negligence  of  the  defend- 
ant was  more  satisfactory  than  in  the  case 
at  bar.  But  the  question  of  the  conclusive- 
ness of  the  evidence  is  one  for  the  jury, 
and  they  have  settled  that  question  in  favor 
of  the  plaintiffs.  In  the  Oliver  Case  the 
negligence  of  the  town  caused  the  defend- 
ant's horses  to  fall  through  and  get  entan- 
gled in  a  bridge  in  the  highway,  which  ren- 
dered it  necessary  that  the  plaintiff  should 
make  exertions  to  free  the  horses  from  their 
difficulty,  and  such  exertions  caused  the  in- 
jury complained  of.  It  is  the  same  in  the 
case  at  bar,  only  not  as  plain  in  its  circum- 
stances. The  negligence  of  the  defendant 
put  the  plaintiffs  in  a  situation  which  ren- 
dered it  necessary  for  them  to  make  an  ex- 
ertion to  get  out  of  such  difficulty,  and  in 
doing  so  the  plaintiff"  Mrs.  Brown  was  in- 
jured, the  same  as  Mrs.  Oliver  in  the  other 
case. 

The  case  of  Stewart  v.  City  of  Ripon  set- 
tles the  other  question,  that  the  peculiar  con- 
dition of  Mrs.  Brown  at  the  time  is  no  de- 
fense to  her  claim  for  damages. 

The  objection  made  that  the  verdict  should 
be  set  aside  because  the  evidence  shows  a 
want  of  care  on  the  part  of  the  plaintiffs, 
and  that  the  injury  resulted  from  such  want 


of  care  after  the  walk  to  Mauston,  w;ti 
clearly  a  question  of  fact  for  the  jury.  It 
does  not  appear  from  the  i-ecord  that  any 
instruction  upon  this  point  was  aslced  for 
by  either  party  on  the  trial.  There  is,  there- 
fore, no  error  upon  this  point  on  the  instruc- 
tion. The  evidence  is  not  so  clear  that  the 
damage  was  caused  by  the  subsequent  neg- 
lect of  the  plaintiff"  to  procure  proper  medical 
attendance  as  would  justify  this  court  in  set- 
ting aside  the  verdict  as  against  the  evi- 
dence. 

The  judgment  of  the  circuit  court  is  affirm- 
ed. 

COLE,  C.  J.,  and  LYON,  J.,  dissent 

On  Rehearing. 

AprU  5,  1882. 

TAYLOR,  J.  Although  the  learned  counsel 
for  the  appellant  has  made  a  very  vigorous, 
not  to  say  denunciatory,  attack  upon  the 
opinion  filed  in  this  case,  we  do  not  deem  it 
proper  to  deviate  from  our  ordinary  rule  of 
denying  the  motion  for  rehearing  without 
comment,  when  no  questions  are  raised  or 
argued  upon  such  motion  which  were  not 
fully  argued  at  the  original  hearing.  In 
denying  this  motion  we  deem  it  proper  to 
say  that  the  intimation  ot  the  learned  coun- 
sel for  the  appellant  that  this  case  was  not 
thoroughly  argued  at  the  original  hearing, 
or  carefully  considered  by  the  court  before 
the  opinion  was  delivered,  is  hardly  just  ei- 
ther to  the  counsel  or  the  court.  Certainly, 
on  the  part  of  the  court,  we  intended  to  give 
it  that  careful  consideration  which  its  im- 
portance demanded,  and  we  are  not  con- 
scious that  we  have  failed  in  our  duty  in 
that  respect,  and  after  reading  the  very  care- 
fully prepared  brief  submitted  by  the  learned 
counsel  for  the  appellant,  and  hearing  his 
clear  and  forcible  oral  argument  at  the  orig- 
inal hearing  of  this  ease,  we  think  he  does 
injustice  to  himself  in  suggesting  that  the 
points  decided  were  not  thoroughly  argued 
at  such  hearing. 

NOTE.  See  Vosburg  v.  Putney,  ante,  165, 
and  Lewis  v.  Railway  Co.,  ante,  182, 


850 


l)AM.\(ii:S   ixN   ACTIONS   ACJAIXST  CAlllUERS. 


MaiKAY  V.  OHIO  RIVER  R.  CO. 

(11  S.  E.  737.  34  W.  Va.  65.) 

Suinciuc    f'onrt    of   Ai)peals    of   West    Virjiinia. 
Juno   24,    IS'90. 

Error  to  circnil  court,  Ohio  county. 

V.  B.  Archer  sind  Itohert  White,  iov  plain- 
tiff in  error.  J.  O.  Pendleton,  for  defend- 
ant in  error. 

BR.ANNON,  J.  Tiiis  was  an  action  of  tres- 
jiMssKn  tluM"fis<'.  in  tlH'f-irc'jit  court  f)f  ()l>io 
county,  brouiiht  by  Winficld  S.  MacKay 
a,2,ainst  tlio  Ohio  Ui ver Railroad  Coinpany, 
resnltins  in  a  verdict  and  jndg-nicnt  for  tiie 
plaintiff  for  .f.'vlD.n,  to  which  jud.i;nientthis 
writ  of  eiTor  Avas  granted  on  the  petition 
of  saidcoin])any.  An  inspection  of  the  dec- 
laration will  raise  the  (|Ucstion  whether 
it  states  a  cause  of  action  ex  contrnctu 
or  ex  delicto;  whether  it  \i^miissunip^iti>n 
a  contract  for  transportation,  or  for  tort 
for  the  ejection  of  the  plaintiff  from  a  car. 
It  aversthat  the  defendant  company  un- 
dertook and  promised,  for  certain  hire  and 
reward  paid  to  it,  to  safely  and  securely 
convey  the  i)laintiff  in  its  cars  from  the 
town  "of  Ravenswood  to  Wheeling,  and 
back  again  to  Ravenswood,  and  that  the 
plaintiff,  confiding  in  such  promise  and  un- 
dertaking of  defendant,  did  take  a  seat  as 
a  passenger,  in  the  defendant's  car,  and  was 
conveyed  to  \A'heeling,  and  that  after- 
wards, still  confiding  in  such  pi-omise  and 
undertaking  of  the  defendant,  he  took  a 
seat  as  a  passenger  in  one  of  its  cars  to  be 
conveyed  back  from  Wheeling  to  Ravens- 
wood"^;  but  the  defendant,  not  regarding 
its  promise  and  undertaking,  but  contriv- 
ing to  injure  the  plaintiff,  did  not  convey 
him  from  Wheeling  to  Ravenswood,  but 
neglected  and  refused  so  to  do.  Thus  far 
the  declaration  seems  to  be  based  on  the 
contract  of  conveyance  made  by  the  de- 
fendant, as  a  carrier,  with  the  plaintiff. 
But  it  then  inin)ediately  avers  that,  in- 
stead of  so  conveying  the  plaintiff,  the  de- 
fendant, by  its  servants,  violently  and 
with  great  force  caused  the  plaintiff, 
against  his  will  and  protest,  to  be  ejected 
from  said  car,  and  to  be  pushed  and  hurled 
from  it  upon  the  ground,  and  to  be  pre- 
vented from  going  to  Ravenswood  on  that 
day,  by  means  wliereof  he  was  coni])elled 
to  walk  a  long  distance  to  a  hotel,  was 
greatly  humiliated  in  his  feelings  and  hurt 
in  his  pride,  by  being  exposed  to  other 
passengers  on  the  car,  and  was  comi)el!ed 
to  remain  in  Wheeling,  fr(mi  his  business 
and  home.'  and  to  pay  hotel  bills,  and 
s[iend  thi-ee  or  four  dollars  for  telegrams 
sent  to  his  wi  e,  to  allay  her  uneasiness 
on  account  of  his  failure  to  reach  Injme 
when  expected,  and  to  spend  monev  to 
purchase  a  ticket  to  reach  home,  and  to 
borrow  money  for  that  purpose,  and  that 
his  wife  was  ill,  and  hei-  alarm  from  his 
faiinre  to  reach  home  when  exjjected  in- 
jured her,  and  protracted  her  illn(>ss.  caus- 
ing him  to  i)ay  large  medical  bills,  and 
That  his  business  was  damaged  by  his  de- 
tentionfrom  home,  and  hesustaiued  numer- 
ous other  injures,  to  his  damage  .flO,0(lO. 
The  most  of  tlrs  matter  rdates  to  the 
tort  of  rjecting  the  plaintiff  from  the  cars, 
and  looks  to  that  as  the  cause  or  grnva- 
nien  of  the  action.     The  declaration  thus 


contains  matter  leased  on  the  contract, 
and  matter  based  on  the  tort;  and  it  is 
somewhat  difficult  to  say  whether  it  aims 
to  state  the  breach  of  the  contract  to  con- 
AX\y,  or  the  tort  in  ejecting  him  from  the 
car,  as  the  ,i,'7'aw77JK'iv  of  the  action.  But 
itcannotl)etreatedasdonblein  nature.  It 
inustbe  classed  either  as  an  action  ex  con- 
tr.ictii  or  e.Y  delicto.  The  writ  summons 
the  defendant  to  answer  an  action  of  tres- 
pass on  the  case,  and  the  declaration  de- 
nominates the  action  as  trespass  on  the 
case;  and  I  conclude  to  regard  the  state- 
ment of  the  contract  of  conveyance  as  a 
l)assenger  as  matter  of  inducement  explan- 
atory of  the  reason  of  the  plaintiff's  pres- 
ence"^ on  the  car,  and  the  ejection  of  the 
plaintiff  from  the  car  Avith  force  and  arms 
a»  Uu)  ,i>-rarawen  of  the  action,  and  shall 
treat  the  action  as  trespass  on  the  case. 
This  classification  of  the  action  is  neces- 
sary in  passing  on  the  motion  to  exclude 
the  plaintiff's  evidence;  for,  if  we  regard 
the  declaration  as  in  assumpsit,  the  evi- 
dence would  go  to  sustain  the  action,  and 
the  motion  to  exclude  it  would  conse- 
quently be  overruled,  but,  if  we  regai-d  it 
as  in  case,  the  evidence  is  not  sufficient  to 
sustain  the  action,  and  the  motion  to  ex- 
clude it  should  have  been  sustained. 

The  plaintiff's  evidence  shows  that  he 
purchased  from  the  defendant's  agent  at 
Ravenswood  what  was  regarded  a  round- 
trip  ticket  from  Ravenswood  to  Wheeling 
and  return,  and  paid  iif7.o5  for  it,  and  un- 
der it  went  to  AVheeling,  and,  when  he 
started  to  return  to  Ravenswood,  found 
that  his  ticket  was  stamped  on  each  end 
from  " Ravens ivood  to  Wheeling"  instead 
of  being  stamped,  as  it  should  have  been, 
on  one  end  for  passage  from  Ravenswood 
to  Wheeling,  and  on  the  other  from  Wheel- 
ing to  Ravenswood  ;  that  he  did  not  no- 
tice the  mistake  when  he  purchased  the 
ticket,  and  first  noticed  it  when  he  board- 
ed the  train  at  Wheeling  to  return  to  Ra- 
venswood. The  conductor  on  the  train  to 
Wheeling  tore  off  one  end  or  coupon  of  the 
ticket,  and  when,  on  his  return,  the  plain- 
tiff tn-esented  his  ticket  to  the  conductor, 
he  i-efused  to  receive  it  because  it  called  for 
a  passage  from  Ravenswood  to  Wheeling, 
not  from  Wheeling  to  Ravenswood,  and 
said  to  plaintiff:  "This  ticket  is  no  good. 
You  will  have  to  pay  your  fare,  or  get 
oft,  "—and  the  idaintiff  replied,  "I'll  be 
damned  if  I  do."  The  conductor  pulled 
the  bell-rope  to  stop  the  train;  and,  as 
the  train  was  stopping,  plaintiff  asked  the 
conductor  what  was  the  matter  with  the 
ticket,  and  he  said  it  was  not  good.  The 
plaintiff  informed  him  that  he  had  come 
up  on  it  the  day  before  with  Conductor 
Patrick;  and  the  conductor,  Rice,  then 
said,  "  lie  gave  you  the  wrong  end,"  and 
said,  further,  "You  will  have  to  pay  ycwir 
fare."  Plaintiff  then  said  to  him  that  he 
had  no  money,  and  that,  if  the  conductor 
had  given  him  the  wrong  end  of  the  ticket, 
it  was  a  mistake,  and  it  did  not  cost  any 
more  to  take  him  back  than  to  bring  him 
up,  to  which  Conductor  Rice  replied,  "  It 
don't  make  a  damn  bit  of  difference,"  and 
that  plaintiff  must  pay  fare  or  get  off. 
When  the  train  stopped,  tiie  plaintiff  said  : 
"If  I  get  off  here,  somebody  will  have  to 
pay  for  it.     I  want   to  get  home  on  this 


CATIKIKLfS    OF    TASSKX*  J  I:KS. 


3-.I 


train."  Plaintiff  says  lie  then  -  ol  off  tlie 
iVain  down  upon  the  street  in  the  city  of 
Wheelina;.  He  further  says:  "Of  course 
the  passengei-s  could  not  lu-ar  what  was 
said  between  the  conductor  and  niyseif, 
and  they  did  not  know  what  I  wasi)ut  off 
for. " 

There  is  no  act  of  trespass  shown  by 
this  evidence.  There  is  not  the  sli.!j;htest 
evidence  of  force  or  violence  used  by  any 
of  tlie  defendant's  empioj'es  upon  the 
])laintiff.  He  was  not,  as  alleged  in  the 
declaration,  violently  and  with  izreat  force 
ejected  and  pushed  and  hurled  from  the 
car,  bnt  walked  from  it  himself,  without 
the  slightest  battery  or  assault  upon  his 
person.  He  does  not  himself  say  so,  and 
otherevidences  make  itquite  clear  that  no 
force  or  violence  was  used.  The  evidence 
does  show  a  breach  of  the  company's  con- 
tract to  convey  the  iDlaiutiff  asa  passen.ijer, 
or  an  aureement  to  sell  a  different  ticket, 
but  not  a  trespass  for  which  an  action 
based  on  a  tort  can  be  maintained.  H  is 
simi)ly  the  case  of  a  refusal  and  failure  to 
carry  out  its  contract  of  conveyance,  for 
Avhich  an  action  of  trespass  on  the  case,  in 
/is.siiinj).sit  Itased  on  that  contract,  nii.uht 
be  maintained.  The  mere  manner  of  his 
expulsion  would  not  sustain  the  action  as 
one  based  on  tort.  The  plaintiff's  evi- 
dence is  that  the  conductor"  talked  short" 
to  him,  and  he  to  the  conductor,  and, 
when  he  Avas  presenting-  his  views  as  to 
the  validit^^  of  the  ticket,  the  conductor 
said,  "It  don't  make  a  damn  bit  of  differ- 
ence, " — that  he  had  to  get  off  or  pay  fare. 

In  the  late  case  in  the  sui)reme  court  of 
North  Carolina,  (liosev.  llailroad  Co.,  11 
S.  E.  Rep.  520, )  an  action  for  putting  plain- 
tiff and  her  husband  off  a  train,  it  ap- 
peared that,  their  ticket  not  being  stamped 
as  required,  the  conductor  told  the  hus- 
band they  must  pay  fare  or  get  off,  and 
afterwards,  at  the  next  station,  said,  in  a 
brusque,  decided  manner:  "This  is  H.,  if 
you  are  going  to  get  off,"  and,  they  say- 
ing they  had  no  intention  of  getting  off 
unless  ordered,  he  said,  "Then  I  order  you 
off, '■  and  they  got  off.  and  returned  and 
paid  fare,  and  it  was  held  that  the  com- 
pany was  not  liable  for  damages,  though 
plaintiff  was  lying  on  pillows,  and  appar- 
ently an  invalid.  But,  had  force  been  used, 
if  no  more  than  was  necessary  to  re- 
move the  plaintiff  from  the  car,  or  if  it  be 
said  that  actual  force  is  not  necessary  to 
sustain  the  action,  but  that  threatened  ex- 
pulsion and  departure  of  the  passenger 
from  the  car  by  reason  of  it  shall  stand  in 
lieu  of  it,  1  do  not  think  the  action  can  be 
maintained. 

In  Frederick  v.  Railroad  Co.,  37  Mich. 
342,  it  is  said  that  the  uniform  and  uni- 
versal practice  is  for  railroad  companies 
to  issue  tickets  with  the  places  designated 
from  and  to  which  the  passenger  is  to  be 
carried,  and  that  these  tickets  are  unhesi- 
tatingly accepted  by  the  conductor  as  evi- 
dence of  the  contract  between  the  com- 
pany and  passenger,  and  that  the  conduct- 
or has  seldom  any  othei-  means  of  ascer- 
taining or  learning,  within  time  to  be  of 
any  avail,  the  terms  of  thecontract,  unless 
lie  relies  on  the  statement  of  the  passen- 
ger, contradicted,  periiaps,  by  the  ticket, 
and  that  there  will  be  cases  where  a  ticket 


is  lost,  or  where  l)y  mistake  the  wn-ong 
ticket  was  delivered  to  the  passenger,  and 
Ik;  will  be  olilig(>d  to  pay  his  fare  a  second 
time  to  pui-Hue  his  jonrney,  and,  if  he  is  un- 
able to  do  so,  gi'cat  delay  and  injury  may 
result.  Such  delay  and  injury  would  be 
the  natural  result  of  the  loss  of  the  ticket 
or  breach  of  the  contract,  but  would,  in 
part,  at  least,  be  in  consequence  of  the 
pecuniary  circumstances  of  the  party. 
Thatsuch  cases  are  exceptional,  and  liow- 
ever  unfortunate  the  party  who  is  so  situ- 
ated, yet  no  rule  has  ever  been  devised 
that  would  not  at  times  injuriously  affect 
those  it  was  designed  'to  accommodate. 
The  judge  then  asks:  "How,  then,  is  the 
conductor  to  ascertain  the  conti-act  en- 
tered into  between  the  passenger  and  the 
railroad  company  where  a  ticket  is  pur- 
chased and  presented  to  him'?  Practical- 
ly, there  are  but  two  ways, — one,  the  evi- 
dence aff(jrded  by  the  ticket:  the  oth;n", 
the  statement  of  the  passenger,  contra- 
dicted by  the  ticket.  Which  sliould  gov- 
ern'? *  *  *  Ther'^  is  but  one  I'ule  which 
can  safely  be  tolerated  with  any  decent 
regard  to  the  rights  of  railroad  conipanies 
and  jiassengers  generally.  As  between 
the  conductor  ami  passengerand  theright 
of  the  latter  to  travel,  the  ticket  produced 
must  be  conclusive  evidence;  and  he  must 
produce  it,  when  called  upon,  as  the  evi- 
dence of  his  right  to  the  seat  he  claims. 
Where  a  passenger  has  purchased  a  ticket, 
and  the  conductor  does  not  carry  iiim  ac- 
cording to  its  terms,  or  if  the  couipaiiy, 
through  the  mistake  of  its  agent,  has  giv- 
en him  the  wrong  ticket,  so  that  he  luis 
been  comi)elled  to  i-elimpiish  his  Keat,  or 
pay  his  fare  a  second  time  in  oider  tore- 
tain  it,  he  would  have  a  remedy  against 
the  company  for  a  breach  of  the  contract; 
but  he  would  have  to  adopt  a  declaration 
differing  essentially  from  the  one  resorted 
to  in  this  case.  "  In  that  case  the  passen- 
ger had  paid  to  a  point  beyond  that  called 
for  by  the  ticket,  and,  refusing  to  pay  fare, 
was  ejected,  and  was  denied  a  recovery  in 
an  action  on  the  case.  The  princiF)le 
enunciated  in  this  casein  Michigan,  that, 
as  between  the  passengerand  the  conduct- 
or, the  ticket  is  the  conclusive  evidence  of 
the  passenger's  rights,  is  sustained  in  sev- 
ei-al  well-considered  cases.  Townsend  v. 
Railroad  Co.,  5(5  N.  Y.  295;  opinion  by 
Chief  Justice  Cooi.ey  in  Huffoi-d  v.  Rail- 
road Co.,  .53  Mich,  lis,  18  N.  W.  Rep.  5  A); 
Railroad  Co.  v.  Griffin,  6S  111.  4'.;!);  Mc- 
Clure  V.  Railroad  Co.,  34  Md.  532:  Siie'.tun 
V.  Railroad  Co.,  29  Ohio  St.  214:  Downs  v. 
Railroad  Co.,  30  Conn.  2S7;  Petrie  v.  Rail- 
road Co.,  42  N.  J.  Law,  449;  Yorton  v. 
Railroad  Co.,  .54  Wis.  234,11  N.  W.  Rep. 
4^2;  Bradshaw  v.  Railrcjad  Co.,  135  Mass. 
407. 

In  the  Ohio  case  of  Shelton  v.  Railroad 
Co.,  supra,  it  was  held  that  the  fact  that 
a  ticket  had  been  purchased,  which  was 
afterwards  wrongfully  taken  up  by  a 
conductor  on  one  train,  will  not  relieve  a 
passeuL'-er  from  the  duty  of  buying  a  tick- 
et or  paying  fare  on  another  train  of  the 
defendant,  and  that  in  such  case  the  right 
of  action  would  be  for  wi'ongiuUy  taking 
up  the  ticket,  and  not  for  removal  irom 
the  train  for  failure  to  pay  fare. 

In  the  Illinois  case  above  cited,  (Rail- 


352 


DAMA(4ES  IN   ACTIONS  AGAINST  CARRIERS. 


road  Co.  v.  Griffin,)  it  was  held  that  if  a 
passtMift-er  pay  Jare  to  a  certain  station, 
and  the  agent  inadvertently  give  him  a 
ticket  to  an  intermediate  station,  tiie 
demand  of  a  second  fare  will  be  a  breach 
of  the  implied  contract  on  the  part  of  the 
comi)any  to  carry  him  to  the  proper  sta- 
tion. By  paying-  a  second  time,  hi.s  action 
will  be  as  complete  as  if  he  resist  tiie  de- 
mand, and  snffers  himself  to  be  ejected;  and 
his  ejection  will  add  nothing  to  his  cause 
of  action.  It  is  his  duty  to  pay  the  second 
fare;  and,  if  the  company  fail  to  make 
reparation,  he  can  maintain  his  appropri- 
ate action.  This  case  recognizes  the  con- 
tract as  the  proper  ground'  of  action. 
Hall  V.  Railroad  Co.,  9  Fed.  Rep.  5S5. 

In  Yorton  v.  Railroad  Co.,  supra,  the 
passenger,  desiring  to  stop  over,  and  hav- 
ing the  right  to  a  stop-over  ticket,  wasgiv- 
en  instca(i  a  trip  check,  through  the  con- 
ductor's fault;  and  it  was  held  that  a 
second  conductor  may  demand  additional 
fare,  and  may,  on  refusal  to  pay,  eject  him 
from  the  train,  using  no  unnecessary  force, 
and  that  such  ejection  will  be  no  ground 
of  recovery  against  the  company,  though 
it  will  be  liable  for  the  fault  of  the  first 
conductor. 

In  Townsend  v.  Railroad  Co.,  supra,  it 
was  held  that  a  regulation  of  a  railroad 
company  requiring  passengers  to  present 
evidence  to  the  conductor  of  a  right  to  a 
seat  or  pay  fare,  is  reasonable,  and  for 
non-compliance  a  passenger  may  be  put 
off,  and  the  wrongful  taking  of  the  pas- 
senger's ticket  by  a  conductor  of  a  pre- 
vicjus  train,  on  which  the  passenger  had 
performed  part  of  his  journey,  does  not 
exonerate  him  from  compliance  with  the 
regulation,  and  that  for   the  wrongful  act 


of  the  former  conductor  the  com])any  is 
liable.  It  does  not  justify  the  passenger 
in  violating  the  company's  lawful  regula- 
tion on  another  train. 

In  Hibbard  v.  Railroad  Co.,  15  N.  Y.  455, 
it  was  held  that  a  passenger  who  had  a 
ticket  in  his  pocket,  and  had  exhibited  it 
once  to  the  conductor,  and  refused  to  ex- 
hibit it  again  when  called  on,  was  proper- 
ly ejected  for  refusing  to  exhibit  his  ticket. 

Here  the  plaintiff  had  a  ticket  not 
good  for  the  trip  he  was  making,  and 
declined  to  pay  fare.  He  cannot  main- 
tain an  action  for  ejection,  or  a  threat- 
ened ejection,  from  the  train,  but  must 
look  to  the  breach  of  contract,  or  the  act 
of  receiving  money  for  the  round  trip  and 
giving  a  wrong  ticket.  If  the  passenger 
have  a  ticket  good  for  the  passage,  and 
the  conductor  should  refuse  to  recognize 
it,  and  expel  the  passenger,  the  act  would 
be  a  tort;  and  an  action  as  for  a  tort  could 
be  maintained.  Judge  Cooley  said  in 
Hufford  v.  Railroad  Co.,  supra,  that  all 
the  judges  of  the  Michigan  supreme  court 
agreed  that  if  the  ticket  was  apparently 
good  the  passenger  need  not  leave  the  car. 
But  here  the  ticket  was  vei-y  apparently 
not  good.  Therefore  the  motion  of  the 
defendant  to  reject  plaintiff's  evidence  as 
not  sustaining  his  action  should  have 
been  sustained,  not  overruled.  As  the  evi- 
dence should  have  been  excluded,  it  be- 
comes unnecessary  to  pass  on  the  instruc- 
tions. The  judgment  is  reversed,  the  ver- 
dict of  the  jury  set  aside,  and  the  case  is 
remanded  for  a  new  trial  in  accordance 
with  principles  herein  indicated. 

SNYDER,  P.,  and  ENGLISH,  J.,  concur- 
red. LUCAS,  J.,  dissentins. 


CAliUlEUS   OF    PASSENGERS. 


ELLSW()1{TII    V.    CH1('A(40,    B.    &    Q.    RY. 
CO. 

(G3  N.   W.  584,  95  Iowa.   OS.) 

Supremo  Cimvt  of  Iowa.      May   2.S.   1805. 

Appeal  from  district  court,  Adams  county; 
H.  M.  ToAvuer.  ,7udge. 

On  tlie  moi'uing  of  September  27,  1803,  the 
plaintiff  procured  a  ticket  on  defendant's  line 
of  road  from  Prescott  to  Corning,  a  distance 
of  7%  miles.  Because  of  the  fair  at  Corning, 
the  company  was  selling  roinid-trip  tickets  at 
reduced  rates,  which  tickets  had  to  be  filled 
iu  with  a  pen.  The  plaintiff  was  late  reach- 
ing the  depot  at  Prescott,  so  that  there  was 
no  time  to  fill  up  a  round-trip  ticket,  and  he 
told  the  agent  to  give  him  a  "straight  ticket." 
The  train  was  moving,  and  plaintiff  took  the 
ticket  handed  him,  and  caught  the  train,  and 
got  onto  the  rear  platform.  Because  of  his 
haste,  he  did  not  pay  for  the  ticket,  but  said 
to  the  agent  that  he  would  pay  on  his  return, 
to  which  the  agent  assented.  By  a  rule  of 
the  company,  tickets  must  be  used  on  the 
day  they  are  purchased,  and,  if  not  so  used, 
they  may  be  returned,  and  the  purchase 
money  will  be  refunded.  The  ticket  given 
plaintiff  was  dated  September  24.  1893,  in- 
stead of  the  27th,  the  day  on  which  it  was 
handed  to  plaintiff.  The  deliveiy  of  the 
ticket  to  plaintiff'  was  a  mistake,  it  having 
before  been  sold,  and  not  used,  and  then  re- 
deemed, as  above  stated.  The  redemption 
was  by  the  night  agent  a%,  Prescott,  who  put 
it  in  the  drawer  in  the  ticket  office,  and  the 
day  agent,  without  noticing  the  date,  gave  it 
to  plaintiff.  When  a  short  distance  from 
Prescott,  the  conductor  asked  for  plaintiff's 
ticket,  and  the  ticket  in  question  was  handed 
him.  which,  because  of  its  date,  he  refused, 
and  demanded  tlie  fare.  The  regular  fare  to 
Corning  is  22  cents,  and  by  the  rules  of  the 
company,  authorized  by  the  laws  of  the  state, 
10  cents  above  the  regular  fare  is  collected 
by  conductors  when  the  ticket  office  has  been 
open  for  a  reasonable  time  before  the  de- 
parture of  trains,  and  tickets  are  not  se- 
cured. After  the  refusal  of  the  conductor  to 
receive  the  ticket,  plaintiff  offered  to  pay  the 
regular  fare,  but  refused  to  pay  the  ^  addi- 
tional 10  cents.  The  train  was  stopped,  and 
plaintiff  ejected,  and  this  action  is  for  dam- 
ages. There  was  a  verdict  and  judgment  for 
the  plaintiff,  and  the  defendant  appealed. 
Affirmed. 

Smith  McPhei-son,  for  api>ellaut.  Davis  & 
Wells,  for  appellee. 

GRANGER,  J.  1.  The  court  gave  the  jury 
the  following  insk'uctiou:  "The  ticket  intro- 
tiuced  in  evidence,  and  which  is  admitted  a.> 
ihe  one  purchased  by  plaintiff  of  defendant's 
agent,  is  dated  September  24, 1893,  and  con- 
tains the  following  clause:  'Continuous  pas- 
sage within  one  day  of  date  of  sale.'  You 
are  instructed  that  said  clause  is  a  limitation 
LAW  DAM.2d  Ed.— 23 


of  the  time  on  which  said  ticket  will  be 
honored,  and,  as  such,  is  a  reasonable  limita- 
tion and  nile.  You  are  fiu'ther  instructed 
that,  presumptively,  the  date  of  the  ticket 
was  the  day  of  its  sale.  Rut  if,  as  a  mat- 
ter of  fact,  the  day  of  the  sale  differs  from  the 
date  of  the  ticket,  yet  the  said  ticket  by  its 
express  terms  was  good  from  the  date  of 
sale,  and  yoti  find  from  the  evidence  that  said 
ticket  was  purchased  by  plaintiff'  on  the  2Gth 
or  27th  day  of  September,  1 893,  and  was  pre- 
sented within  one  day  from  the  actual  date 
of  such  sale,  it  was  good  for  such  passage 
between  the  points  named,  to  wit,  Prescott 
and  Corning."  The  instruction  is  said  to  in- 
volve error  because  it  treats  the  transaction 
between  the  agent  and  plaintiff  as  a  sale  of 
the  ticket,  when  it  appears  that  the  ticket 
vsas  not  paid  for  on  delivery,  but  it  was 
paid  for  afterwards  on  the  same  day  On 
that  branch  of  the  case  the  court  gave  the 
following  instruction:  "In  the  case  at  bar  it 
is  admitted  that  plaintiff  procured  a  ticket 
from  the  defendant's  agent  at  Prescott  be- 
fore entering  defendant's  cars.  It  is  also  ad- 
mitted that  payment  was  not  made  until 
thereafter.  On  this  branch  of  the  case  you 
are  instructed  that  a  neglect  of  plaintiff  to 
pay  for  the  same  at  that  time,  under  the  cir- 
cumstances shown  on  the  trial  of  this  case, 
would  not  alone,  or  for  that  reason,  mvali- 
date  the  ticket;  and  an  acceptance  on  the 
part  of  the  agent  of  plaiutiff"s  promise  to  pay 
therefor  on  his  return,  and  a  payment  there 
after,  constitute  a  valid  consideration  and 
payment  therefor."  It  seems  to  us  that  that 
is  the  correct  rule.  Had  there  been  a  refusal 
to  accept  the  ticket  because  not  paid  for,  the 
question  might  be  different.  It  is  not  what 
could  be  called  a  credit  sale,  nor  was  it  in- 
tended as  such,  but  only  a  delay  in  payment 
because  there  was  not  time  to  pay  and  get 
the  train,  and  payment  was  expected  the 
same  day,  and  so  made. 

2.  There  is  a  further  comi)laint  of  instruc- 
tion No.  6  because,  notwithstanding  the 
clause,  "continuous  passage  within  one  day 
of  date  of  sale,"  it  holds  the  ticket  good  if 
presented  "within  one  day  from  the  actual 
date  of  such  sale."  This  contention  means 
that  the  validity  of  the  ticket  for  the  pas- 
sage depended  upon  its  date  i-ather  than  the 
fact  as  to  the  sale.  We  cannot  concur  in 
that.  view.  It  is  not  to  be  believed  that  the 
company  ever  intended  to  sell  a  ticket  that 
should  not  be  honored  for  a  passage  on  the 
day  of  the  actual  sale.  It  is  true  that  the 
intent  is,  in  such  cases,  to  have  the  two 
dates  concur,  but  no  company  or  person 
would  ever  design  that  its  mistake  in  such 
a  way  should  be  to  the  prejudice  of  a  pur- 
chaser of  a  ticket.  It  is  not  to  be  doubted 
that  both  the  company  and  the  plaintiff  in- 
tended that  the  ticket  iu  question  should  be 
good  for  a  passage  on  the  train  on  which  it 
was  off'ered.  The  facts  admit  of  no  other 
conclusion.  It  is  equally  true  that  the  plain- 
tiff'  was,  as   between  himself  and  the   com- 


354 


DAMAGES  IN   ACTIONS  AGAINST  CARRIEKS. 


pany.  eutitled  to  passage  on  that  train,  and 
that  his  ejectment  from  it  was  wrongful. 
Tlie  more  difficult  question  is  as  to  his  rem- 
edy for  the  wrong  done  him;  that  is,  when 
the  conductor  refused  to  accept  the  ticket 
because  of  its  date,  had  the  plaintiff  the  le- 
gal right  to  insist  on  a  passage  on  that  train, 
and  resist  removal  therefrom,  or  should  he 
have  paid  his  fare,  as  demanded,  and  sought 
redress  from  the  company  on  that  basis,  or, 
not  wishing  to  do  that,  should  he,  on  request 
of  the  conductor,  to  avoid  damage,  have  left 
the  train  without  resistance,  and  based  his 
damage  on  the  mistake  in  selling  him  the 
ticket?  Authoi'ities  on  this  question  are  far 
from  being  harmonious.  Other  courts  have, 
and  this  court  should,  in  determining  these 
questions,  keep  in  mind  the  difficulties  to 
be  met  with  and  overcome  in  a  successful 
management  of  the  railway  passenger  traffic 
of  the  country,  both  as  to  the  public  and  the 
carriers.  To  such  an  end  it  is  clearly  im- 
portant that  there  shall  be  rules  for  the 
guidance  of  employes  in  the  different  parts 
of  the  service,  and  that  such  rules  should  be 
conclusive  as  to  their  course  of  conduct,  even 
though  at  times  the  rule  may  operate  to  the 
prejudice  of  an  individual  passenger.  We 
may  instance  a  case  or  two  as  illustrative 
of  it,  as  when  a  person  who  has  purchased 
a  ticket  loses  it.  All  will  at  once  see  that, 
although  he  has  paid  for  the  passage,  he  is 
not  entitled  to  it  on  the  losl  ticket,  because 
the  only  evidence  to  show  the  conductor  that 
he  has  purchased  a  ticket  is  his  word,  and 
the  confusion  and  consequences  to  result 
from  such  a  system  of  management  are  too 
manifest  to  desei"ve  comment.  Take,  also,  a 
ease  in  which  a  ticket  is  paid  for,  but  no 
ticket  handed  to  the  passenger,  through  the 
neglect  of  the  agent,  and  the  passenger 
boards  the  train  with  no  evidence  of  a  right 
to  a  passage.  The  equitable  status  of  the 
passenger  in  this  case  is  somewhat  stronger 
than  in  the  other,  but  the  Importance  of  a 
rule  of  conduct  for  the  conductor  is  equally 
strong.  In  such  a  case  there  is  no  harsh- 
ness in  the  i-ule  requiring  him  to  seek  his 
damage,  if  any,  on  the  basis  of  a  failure  to 
deliver  the  ticket,  and  which  excludes  him 
from  any  rights  on  the  train  because  of  his 
payment  for  the  ticket.  It  is  safe  to  state, 
as  a  rule  of  passenger  traffic,  that  no  person 
has  a  right  to  passage  on  a  train  without 
paying  fare,  unless  a  ticket  or  other  evidence 
of  a  right  to  transportation  is  presented  to 
the  conductor.  This  holding,  at  the  outset, 
puts  us  to  that  extent  in  line  with  the  au- 
thorities on  the  subject,  a  number  of  which 
are  cited  by  api)ellant  in- support  of  its  con- 
tention in  this  case.  A  case  relied  on  by 
appellant  is  Frederick  v.  Railroad  Co.,  37 
JNlich.  342.  We  have  examined  the  case  with 
care.  In  that  case  it  was  claimed  b.y  plain 
tiff  that  h(>  called  and  paid  for  a  ticket  from 
Islipeming  to  Marquette,  and,  by  mistake, 
the  conductor  gave  him  one  to  Morgan,  an 
iutermedi.-ite    station.     He    rode  to   Morgan 


on  the  ticket,  and,  refusing  to  pay  his  fare 
to  Marquette,  he  was  ejected  from  the  train, 
because  of  which  he  brought  the  action.  In 
that  case  it  will  be  seen  that  the  passenger 
had  no  ticket  from  ^Morgan  to  Marcpiette,  a 
fact  known  to  him  before  reaching  Morgan. 
The  case  in  this  respect  is  quite  in  line  with 
the  rule  we  announce,  and,  in  this  respect, 
unlike  the  case  at  bar.  The  opinion  in  that 
case  deals  somewhat  elaborately  with  the 
importance  of  rules  to  guide  conductors,  and 
of  the  conclusiveness  of  the  ticket  as  to  his 
duty.  In  the  opinion  in  that  case  it  is  said: 
"As  between  the  conductor  and  passengei-. 
the  ticket  must  be  the  conclusive  evidence 
of  the  extent  of  the  passenger's  right  to 
travel.  No  other  rule  can  protect  the  con- 
ductor in  the  performance  of  his  duties,  or 
enable  him  to  determine  what  he  may  or 
may  not  lawfully  do  in  managing  the  train 
or  collecting  fares."  With  the  proposition 
we  do  not  differ,  for,  as  betAveen  the  conduc- 
tor and  passenger,  no  other  rule  can  well 
obtain,  but  that  is  not  to  say  that  a  passen- 
ger may  not  have  rights  on  a  train  that  a 
conductor,  observing  his  instructions,  may 
not  violate  so  that  the  company  will  be  li- 
able. The  reasoning  in  that  case  would 
carry  the  effect  of  the  rule  further  than  we 
indicate  our  approval.  It  treats  of  the  du- 
ties of  passengers,  even  when  entitled  to  a 
passage  on  a  ticket,  and  the  right  is  denied 
by  a  conductor,  and  when  a  wrong  ticket  is 
Issued  by  mistake  of  the  agent,  so  that  he 
has  not  the  ticket  he  should  have,  and  it 
favors  a  yielding  on  the  part  of  the  passen- 
ger to  the  claims  of  the  conductor  in  either 
case,  and  his  seeking  a  remedy  otherwise- 
than  for  an  ejectment  from  tlie  train.  The 
force  of  that  case  as  an  authority  in  the  re- 
spects stated  is  much  lessened,  if  not  entirely 
lost,  from  the  fact  that,  of  the  four  judges, 
two  of  them  place  their  concurrence  in  an 
affirmance  on  a  different  ground,  and  it  does 
not  appear  that  the  reasoning  referred  to  is 
approved  by  them.  In  a  later  JNIicliigan 
case,  that  of  Hufford  v.  Railway  Co.,  .53 
Mich,  lis,  18  N.  W.  580,  the  language  of  the 
Frederick  Case,  that  we  approve,  is  in  sub- 
stance stated  and  approved.  In  the  latter 
case  the  ticket  purchased  was  a  pait  of  an 
excursion  ticket  that  had,  in  part  at  least, 
been  canceled,  and  Ihis  was  apparent  on  the 
face  of  the  ticket.  The  agent,  when  shown 
the  ticket  by  the  purchaser,  said  it  was  good, 
but  it  really  was  not.  In  that  case,  to  pre- 
vent ejectment  from  the  train,  the  passen- 
ger paid  the  fare,  and  the  action  was  for 
damages  because  the  conductor  laid  his  hand 
on  him  to  put  him  off,  and  took  hold  of  the 
bell  i-ope  to  stop  the  train  for  that  purpose. 
It  is  not  necessary  for  us  to  say  whether  cr 
not  we  concur  in  the  holding  in  that  case, 
for  we  undei-stand  that  court,  to  rest  its  hold- 
ing on  tlie  apparent  invalidity  of  the  ticket 
on  its  face,  it  having  been  canceled.  It  is 
said  in  that  opinion:  "But  we  are  ail  of  tlie 
opinion    that,    if    the    plaintiff's   ticket    was 


CARRIERS   OF   PASSENGERS. 


355 


iipparently  good,  lie  had  a  right  to  refuse  to 
leave  the  car."  That  is  what  we  regard  as 
the  situation  in  this  case.  Plaintiff's  ticliet 
was  apparently  good  on  its  face.  It  should 
have  entitled  him  to  one  first-class  passage 
from  Prescott  to  Corning.  The  fact  render- 
ing it  not  good  was  a  rule  of  the  company 
as  to  the  time  in  which  it  could  be  used. 
These  rules  are  changeable  at  the  pleasure  of 
the  company,  and  when  a  ticket  is  purchased 
from  one  station  to  another,  and  on  its  face 
it  indicates  a  right  to  that  passage,  no  rule 
or  regulation  of  the  company  should  be  per- 
mitted to  defeat  that  right.  A  passenger  has 
a  right  to  assume  that  an  agent  placed  at  a 
station  will  observe  the  rules  with  reference 
to  such  matters  as  dates  in  or  on  a  ticket. 
What  may  be  the  rule  to-day  may  not  be  to- 
morrow. Conceding  plaintiff  to  have  known 
of  the  rule  previously,  he  was  not  called 
upon  to  question  the  act  of  the  agent  as  to 
the  rule  on  the  day  he  bought  the  ticket.  It 
is  neither  reasonable  nor  practicable  for  pas- 
sengers to  take  notice  of  such  matters,  or  at- 
tempt to  coiTect  agents  in  regai'd  to  them. 
With  a  ticket  that  expressed  his  right  to  a 
passage  to  Corning,  he  was  not  required  to 
look  behind  it  for  the  authority  of  the  agent 
to  issue  it.  We  do  not  understand  that  the 
supreme  court  of  Michigan  would  apply  the 
rule  as  to  yielding  to  the  directions  of  a  con- 
ductor to  a  case  like  this,  where  the  ticket 
is  apparently  good,  but,  even  if  otherwise, 
we  cannot  so  hold.  It  would  be  doing  too 
much  in  favor  of  a  party  in  the  wrong 
merely  to  subserve  a  public  convenience,  for 
Avhich  much  is  claimed.  A  thought  in  argu- 
ment is,  and  some  language  of  the  opinions 
referred  to  seems  to  favor  it,  that  it  is  the 
duty  of  the  passenger  to  not  enhance  dam- 
ages by  resistance,  because  it  is  of  no  use, 
but  that  he  should  submit  quietly  to  eject- 
ment, and  then  seek  his  damages.  To  say 
the  least,  we  think  he  may  make  any  resist- 
ance, not  amounting  to  a  criminal  distm-b- 
ance  of  the  peace,  as  was  done  in  this  case, 
and  that  he  is  not  called  upon  to  submit  to 
a  wrongful  ejection  for  the  purpose  of  econ- 
omizing the  damages  to  be  recovered.  Town- 
send  V.  Railway  Co.,  56  N.  Y.  295,  is  anothei 
case  cited  and  relied  upon  by  appellant.  In 
that  case  the  passenger  had  surrendered  his 
ticket  to  a  conductor  on  another  train.  He 
changed  trains,  as  was  necessary,  to  reach 
his  destination,  but  he  had  no  evidence  what- 
ever of  a  right  to  a  passage  on  that  train. 
He  claimed  to  the  conductor  that  he  had  pur- 
chased a  through  ticket,  and  that  the  other 
conductor  had  taken  it,  and  not  given  it  back. 
For  a  refusal  to  pay,  he  was  ejected,  aui  a 
recoveiy  had  in  the  lower  eouii;.  The  case 
was  reversed  on  two  grounds,  the  latter 
ground  being  the  part  of  the  opinion  relied 
on  by  appellant.  The  rule  of  the  case  is  that 
the  remedy  was  an  action  for  the  wrongful 
act  of  the  tirst  conductor  in  taking  his  ticket; 
that  the  act  of  the  first  condiu-tor  did  not  jus- 
tify the  violation  of  the  lawful  regulations 


of  another  train;  that  he  should  have  left 
the  train  without  resistance,  and  if  he  in- 
vited force,  by  resistance,  the  company  was 
not  liable  for  it.  The  rule  is  not  against  our 
conclusions.  The  conductor  was  right  in  re- 
fusing the  passage  without  a  ticket.  In  such 
a  case  the  passenger  must  pay  or  leave  the 
train.  If  he  does  not  he  is  in  the  wrong. 
But  even  in  that  case  two  of  the  judges 
based  their  concurrence  on  the  first  ground, 
and  one  on  the  last. 

The  case  of  Hufford  v.  Railway  Co.,  cited 
above,  was  appealed  a  second  time  and  is 
reported  in  04  Mich.  031,  31  N.  AV.  541.  It 
will  be  remembered  that  it  is  the  case  wliere 
the  canceled  ticket  was  sold  and  refused  l)y 
the  conductor.  As  bearing  upon  the  effet't 
of  such  a  ticket  when  presented  this  lan- 
guage is  used:  "The  ticket  given  by  the 
agent  to  the  plaintiff  was  the  evidence  agreed 
upon  by  the  parties,  by  which  the  defendant 
should  thereafter  recognize  the  rights  of  the 
plaintiff  in  his  contract;  and  neither  the 
company,  nor  any  of  its  agents,  could  there- 
after be  permitted  to  say  that  the  ticket  was 
not  such  evidence,  and  conclusive  upon  the 
subject.  Passengers  are  not  interested  in 
the  internal  affairs  of  the  companies  whose 
coaches  they  ride  in.  nor  are  they  required 
to  know  the  rules  and  regulations  made  by 
the  directors  of  a  company  for  the  control 
of  the  actions  of  its  agents  and  the  manage- 
ment of  its  affairs."  The  ^.-ase  holds  that 
even  the  canceled  ticket,  becau.se  issued  for 
a  passage,  was  gooil  and  coiiciu.sive.  Aiai.- 
way  Co.  V.  Dougherty,  86  Ga.  744,  12  S.  E. 
747.  was  an  action  by  a  colored  woman  for 
being  ejected  from  a  train,  where  there  was 
a  mistake,  her  ticket  being  to  Asheville, 
N.  C,  instead  of  Atlanta,  Ga.,  as  she  sup- 
posed. In  the  opinion  it  is  said:  "We  think 
she  had  a  right  to  rely  on  the  ticket  she  had 
purchased  from  the  agent  of  the  railroad 
company  as  being  a  proper  one,  without  an 
examination  of  the  same;  and,  nothing  else 
appearing,  there  being  no  intervening  cir- 
cumstances which  required  her  to  look  at  the 
ticket,  if  she  could  have  read  the  same,  such 
conduct  upon  the  part  of  the  railroad  com- 
pany and  its  agents  authorized  her  to  recover 
damages."  See  Railroad  Co.  v.  Olds.  77  (^a. 
073;  Railroad  Co.  v.  Winter's  Adm'r,  143  U. 
S.  60,  12  Sup.  Ct.  356;  Railway  Co.  v.  Fix, 
88  Ind.  381;  Railway  Co.  v.  Holdridge,  118 
Ind.  281,  20  N.  E.  837;  Railroad  Co.  v.  Rice, 
64  Md.  63,  21  Atl.  97;  Murdock  v.  Railroad 
Co.,  137  Mass.  293;  Burnham  v.  Railway  Co., 
63  Me.  298. 

Some  importance  is  attached  to  the  fact 
that  the  plaintiff  acquiesced  in  the  demand 
of  the  conductor  by  offering  to  pay  the  regu- 
lar fare,  and  only  objected  to  the  extra  10 
cents,  but  we  do  not  see  how  that  makes  a 
difference  as  to  his  right  of  recovery.  It  is 
not  to  be  questioned  but  that  he  claimed  hi» 
right  to  a  passage  on  the  ticket,  and  made 
the  offer  to  avoid  ejectment  from  the  train. 
As  he  had  a  ticket,  he  felt  that  he  should  not 


350 


DAMAGES  IN  ACTIONS  AGAINST  CARRIERS. 


be  called  upon  to  pay  a  penalty  for  a  neglect 
of  which  he  was  not  guilty.  We  cannot  see 
how  an  offer  to  pay  that  was  not  accepted 
could  excuse  his  ejectment  from  a  train  on 
which  he  was  entitled  to  be. 

The  court  authorized  the  jury  to  find  ex- 
emplary damages,  if  it  found  that  the  act 


of  defendant  was  malicious.  Complaint  is 
made  of  the  insti-uction  under  the  evidence, 
but  it  was  warranted.  There  was  evidence 
of  the  previous  bad  feeling  and  threats 
which,  with  what  was  done  at  the  time  of 
the  ejectment,  made  the  question  one  for  the 
jury.     The  judgment  is  affirmed. 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


357 


PRIMROSE  V.  WESTERN  UNION  TEL.  CO. 

(14  Sup.  Ct.  1098,  154  U.  S.  1.) 

May  26,  1894. 

No.  59. 

In  error  to  the  circuit  court  of  the  United 
States  for  the  eastern  district  of  Pennsyl- 
vania. 

This  was  an  action  on  the  case,  brought 
January  25,  1888,  by  Frank  J.  Primrose,  a 
citizen  of  Pennsylvania,  against  the  Western 
Union  Telegraph  Company,  a  corporation  of 
New  York,  to  recover  damages  for  a  negli- 
gent mistake  of  the  defendant's  agents  in 
transmitting  a  telegi'aphic  message  from  the 
plaintiff,  at  Philadelphia,  to  his  agent  at 
Waukeney,  in  the  state  of  Kansas. 

The  defendant  pleaded  (1)  not  guilty;  (2) 
that  the  message  was  an  unrepeated  mes- 
sage, and  was  also  a  cipher  and  obscure  mes- 
sage, and  therefore,  by  the  contract  between 
the  parties  imder  which  the  message  was 
sent,  the  defendant  was  not  liable  for  the 
mistake.  At  the  trial,  the  following  facts 
were  proved  and  admitted: 

On  Jvme  IG,  1887,  the  plaintiff  wrote  and 
delivered  to  the  defendant,  at  Philadelphia, 
for  transmission  to  his  agent,  William  B. 
Toland,  at  Ellis,  in  the  state  of  Kansas,  a. 
message  upon  one  of  the  defendant's  printed 
blanks,  the  words  printed  below  in  italics 
being  the  wox'ds  written  therein  by  the 
plaintiff,  to  wit: 

-THE    WESTERN    UNION    TELEGRAPH 
COMPANY. 


"THOS.  T.  ECKERT.  NORVIN  GREEN, 

General  Manager.  President. 


"Receiver's  No. 


Time  Filed 
13 


Check 


■"Send  the  following  message, ^ 

subject  to  the  terms  on  bade  1  t^.^^ir  ioQr» 
hereof,  which  are  hereby  K""^^^' ^^^^• 
agreed  to.  J 

"To  Wm.  B.  Toland,  Ellis,  Kansas. 
"Despol  am  exceedingly  busy  bay  all  kinds  quo 
perhaps  bracken  half  of  it  mince  moment  promptly 
of  purchases. 

*" FRANK  J.  PRIMROSE. 

"(H^^READ  THE  NOTICE  AND  AGREEMENT  ON 
BACK  OF  THIS  BLANK.  „^I" 

Upon  the  back  of  the  message  was  the  fol- 
lowing printed  matter: 

"'ALL  MESSAGES  TAKEN  BY  THIS  COM- 
PANY ARE  SUBJECT  TO  THE  FOL- 
LOWING TERMS: 

"To  guard  against  mistakes  or  delays,  the 
sender  of  a  message  should  order  it  RE- 
PEATED; that  is,  telegi-aphed  back  to  the 
originating  ofHce  for  comparison.  P^'or  this, 
one-half  the  regular  rate  is  charged  in  ad- 
dition. It  is  agi-eed  between  the  sender  of 
the  following  message  and  this  company 
that  said  company  shall  not  be  liable  for 
mistakes  or  delays  in  the  transmission  or 
delivery  or  for  nondelivery  of  any  unre- 
peated   message,     whether     happening     by 


negligence  of  its  servants  or  otherwise,  be- 
yond the  amovmt  received  for  sending  the 
same;  nor  for  mistakes  or  delays  in  the 
transmission  or  delivery  or  for  nondelivery 
of  any  repeated  message  beyond  fifty  times 
the  sum  received  for  sending  the  same,  un- 
less specially  insured;  nor  in  any  case  for 
delays  arising  from  unavoidable  interruption 
in  the  working  of  its  lines,  or  for  errors  in 
cipher  or  obscure  messages.  And  this  com- 
pany is  hereby  made  the  agent  of  the  send- 
er, without  liability,  to  forward  any  mes- 
sage over  the  lines  of  any  other  company 
when  necessary  to  reach  its  destination. 

"Correctness  in  the  transmission  of  a  mes- 
sage to  any  point  on  the  lines  of  this  com.- 
pany  can  be  insured  by  contract  in  writing, 
stating  agi-eed  amount  of  risk,  and  paymen*: 
of  premium  thereon,  at  the  following  rates, 
in  addition  to  the  usual  charge  for  repeated 
messages,  viz.  one  per  cent,  for  any  distance 
not  exceeding  1,000  miles,  and  two  per  cent, 
for  any  greater  distance.  No  employe  of  the 
company  is  authorized  to  vary  the  foregoing 

"No  responsibility  regarding  messages  at- 
taches to  this  company  until  the  same  are 
presented  and  accepted  at  one  of  its  trans- 
mitting offices;  and,  if  a  message  is  sent  to 
such  office  by  one  of  the  company's  messen- 
gers, he  acts  for  that  purpose  as  the  agent 
of  the  sender. 

"Messages   wiU   be   delivered    free    witb'^ 
the   established   free  delivery  limits   of  the 
terminal   office.     For   delivery   at  a   greater 
distance,  a  special  charge  will  be  made  to 
cover  the  cost  of  such  delivery. 

"The  company  will  not  be  liable  for  dam- 
ages or  statutory  penalties  in  any  case  where 
the  claim  is  not  presented  in  writing  within 
sixty  days  after  th»  message  is  tiled  with 
the  company  for  transmission. 
"NORVIN  GREEN.  President. 
"THOS.  T.  ECKERT,  General  Manager." 

On  the  evening  of  the  same  day,  an  agent 
of  the  defendant  delivered  to  Toland,  at 
Waukeney,  upon  a  blank  of  the  defendant 
company,  the  message  in  this  form,  the  writ- 
ten words  being  printed  below  in  italics: 

"THE    WESTERN    UNION    TELEGRAPH 
COMPANY. 


"This  company  TRANSMITS  and  DE- 
LIVERS messages  only  on  conditions  limit- 
ing its  liability,  which  have  been  assented  to 
by  the  sender  of  the  following  message. 

"Errors  can  be  guarded  against  only  by  re- 
peating a  message  back  to  the  sending  sta- 
tion for  comparison,  and  the  company  will 
not  hold  itself  liable  for  errors  or  delays  in 
transmission  or  delivery  of  UNREPEATED 
MESSAGES  beyond  the  amount  of  tolls 
paid  thereon,  nor  in  any  case  where  the  claim 
is  not  presented  in  writing  within  sixty  days 
after  sending  the  message. 

"This  is  an  UNREPEATED  MESSAGE, 
and  is  delivered  by  request  of  the  sender, 
under  the  conditions  named  above* 


358 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


"THOS.  T.  ECKERT, 

General  Manaprer. 


NORVIN  GREEN, 

President. 


NUMBER    SENT  BY 
St.  S. 


KEC'D  BY 
F.K. 


CHECK. 

22  Collect  3  exira  words. 


"RECEIVED  at  5  K  p.  m.  June  16, 1887. 

"  Dated  Philadelphia,  16.     Foricarded  from  Ellis. 
"To   W.  B.  Toland,  Wankeney,  Kansas. 

^^ Destroy  am  exceedingly  busy  buy  all  kinds  quo 
perhaps  bracken  half  of  it  mince  moment  promptly 
of  purchase. 

" FRANK  J.  PRIMROSE. " 

The  difference  between  the  message  as 
sent  and  as  delivered  is  shown  below,  where 
so  much  of  the  message  sent  as  was  omitted 
in  that  delivered  is  in  bracliets,  and  the 
words  substituted  in  the  message  delivered 
are  in  italics. 

"[Despot]  Destroy  am  exceedingly  busy 
[bay]  buy  all  kinds  quo  perhaps  bracken  half 
of  it  mince  moment  promptly  of  purchase[s]." 

By  the  private  cipher  code  made  and  used 
by  the  plaintiff  and  Toland,  the  meaning  of 
these  words  was  as  follows: 

"Yours  of  the  [fifteenth]  serente'enth  re- 
ceived; am  exceedingly  busy;  [I  have  bought] 
buy  all  kinds,  live  hundred  thousand  pounds; 
perhaps  we  have  sold  half  of  it;  wire  when 
you  do  anything;  send  samples  immediately, 
promptly  of  [purchases]  j(;«rt7(!«se." 

The  plaintiff  testified  that  on  .Tune  IG.  18S7, 
he  wrote  the  message  in  his  own  office  on 
one  of  a  bunch  or  book  of  the  defendant's 
blanks  which  he  kept  at  hand,  and  sent  it  to 
the  defendant's  otfice  at  Philadelphia;  that 
he  had  a  running  account  with  the  defend- 
ant's agent  there,  which  he  settled  monthly, 
amoimting  to  $180  for  that  month;  that  he 
did  not  then  read,  and  did  not  remember  that 
he  had  ever  before  l-ead,  the  printed  matter 
on  the  back  of  the  blanks;  and  that  he  paid 
the  usual  rate  of  $1.15  for  this  message,  and 
did  not  pay  for  a  repetition  or  insurance  of  it. 

He  also  testified  that  he  then  was,  and  for 
many  years  had  been,  engaged  in  the  busi- 
ness of  buying  and  selling  wool  all  over  the 
country,  and  had  employed  Toland  as  his 
agent  in  that  business,  and  early  in  June, 
1887,  sent  him  out  to  Kansas  and  Colorado, 
with  instructions  to  buy  50,000  pounds,  and 
then  to  await  orders  from  him  before  buying 
more;  that,  before  June  12th,  Toland  bought 
50,000  pounds,  and  then  stopped  buying;  and 
that  he  had  sent  many  telegraphic  messages 
to  Toland  dui-ing  that  month  and  previously, 
using  the  same  code. 

The  defendant's  agent  at  Philadelphia, 
called  as  a  witness  for  the  plaintiff,  testified 
that  he  sent  this  message  for  the  plaintiff, 
and  knew  that  he  was  a  dealer  in  wool,  and 
that  Toland  Avas  with  him,  but  in  what  ca- 
pacity he  did  not  know;  that  he  had  fre- 
quently sent  messages  for  him,  and  consid- 
ered him  one  of  his  best  customers  during  the 
wool  season;  that  telegraphic  messages  by 
the  present  system  were  sent  and  received  by 
Bound,  and  were  all  dots  and  dashes;  that 
"b"  was  a  dash  and  three  dots,  and  "y"  was 


two  dots,  a  space,  and  then  two  dots;  and  that, 
the  dift"erence  between  "a"  and  "u"  was  one 
dot,  "a"  being  a  dot  and  a  dash,  and  "u"  two 
dots  and  a  dash,  and  the  pause  upon  the  last 
touch  of  the  "u;"  that  an  experienced  tele- 
graph operator,  if  the  words  were  properlj' 
rapped  out,  and  he  was  paying  proper  atten- 
tion, could  not  well  mistake  the  one  for  the 
other,  but  might  be  misled  if  he  was  not 
careful;  and  that  it  was  very  likely  that  an- 
other dot  could  be  put  in  if  there  was  any  in- 
terruption in  the  wire.  He  fm'ther  testified 
that  there  was  a  great  difference  between  the 
words  "despot"  and  "destroy"  in  telegraphic 
symbols;  and  that  the  letter  "s"  was  made 
by  three  dots,  so  that,  if  an  operator  received 
the  word  "purchases"  over  the  wires,  and 
wrote  down  "purchase,"  he  omitted  thi'ee- 
dots  from  the  end  of  the  word. 

The  plaintiff  introduced  depositions,  taken 
in  September,  18SS,  of  one  Stevens  and  one 
Smith,  who  were  respectively  telegraph  op- 
erators of  the  defendant  at  Brookville  and  at 
Ellis,  in  the  state  of  Kansas,  on  June  16^ 
1887. 

Stevens  testified  that  Brookville  was  a  relay 
station  of  the  company,  at  which  messages 
from  the  east  were  repeated  westward;  that 
on  that  day  one  Tindall,  his  fellow  operate: 
in  the  Brookville  office,  handed  him  a  copy  in 
Tinuiui's  handwriting  of  the  message  in  ques- 
tion (an  impression  copy  of  which  he  identi- 
fied and  annexed  to  his  deposition),  contain- 
ing the  words  "despot"  and  "bay,"  and  he  im- 
mediately transmitted  it,  word  for  word,  to 
EUis;  that  the  equipment  of  the  office  at 
Brookville  was  in  every  respect  good  and  suf- 
ficient; and  that  he  had  no  recollection  of 
the  wires  between  it  and  Ellis  having  been  in 
other  than  good  condition  on  that  day. 

Smith  testified  that  on  that  day  he  received 
the  message  at  Ellis  from  Brookville,  and 
immediately  wrote  it  down,  word  for  word, 
just  as  received  (and  identified  and  annexed 
to  his  deposition  an  impression  copy  of  what 
he  then  wrote  down),  containing  the  words 
"destroy"  and  "buy,"  and  transmitted  it,  ex- 
actly as  he  received  it,  to  Wankeney,  to 
which  Toland  had  directed  any  messages  for 
him  to  be  forwarded;  and  that  the  office  at 
EUis  was  well  and  sufficiently  equipped  fox* 
its  work,  but  he  could  not  recaU  what  was 
the  condition  of  the  wires  between  it  and 
Brookville. 

The  plaintiff  also  introduced  evidence  tend- 
ing to  show  that  June  16,  1887,  was  a  bright 
and  beautiful  day  at  Ellis  and  Waukeney; 
that  Toland,  upon  receiving  the  message  at 
Wankeney,  made  purchases  of  about  300,000 
pounds  of  wool;  and  that  the  plaintiff,  in  set- 
thng  with  the  sellers  thereof,  suffered  a  loss 
of  upwards  of  $20,000. 

The  circuit  com-t.  following  White  v.  Tele- 
graph Co.,  ^5  McCrary,  103,  14  Fed.  710, 
and  Jones  V.  Telegraph  Co.,  18  Fed.  717, 
ruled  that  there  was  no  evidence  of  gross 
negligence  on  the  part  of  the  defendant;  and 
that,  as  the  message  had  not  been  repeated. 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


359 


the  plaintiff,  by  the  terms  printed  upon  the 
back  of  the  message,  and  referred  to  above 
his  signature  on  its  face,  could  not  recover 
more  than  the  sum  of  $1.13,  which  he  had 
paid  for  sending  it.  The  plaintiff  not  claim- 
ing that  sum,  the  court  directed  a  verdict  for 
the  defendant,  and  rendered  judjiment  there- 
on. The  plaintiff  tendered  a  bill  of  excep- 
tions, and  sued  out  this  writ  of  error. 

Geo.  Jimkin  and  Jos.  de  P.  Junkin,  for 
plaintiff  in  error.  Silas  W.  Pettit,  .Tqhn  H. 
Dillon.  Geo.  H.  Fearons,  and  Rush  Taggart, 
for  defendant  in  error. 


Mr.  Justice  GRAY,  after  stating  the  case, 
delivered  the  opinion  of  the  court. 

This  was  an  action  by  the  sender  of  a  tele- 
gi'aphic  message  against  the  telegraph  com- 
pany to  recover  damages  for  a  mistake  in  the 
transmission  of  the  message,  which  was  in 
cipher,  intelligible  only  to  the  sender  and  to 
his  own  agent,  to  whom  it  was  addressed. 
The  plaintiff  paid  the  usual  rate  for  this  mes- 
sage, and  did  not  pay  for  a  repetition  or  in- 
surance of  it. 

The  blank  form  of  message,  which  the 
plaintiff  filled  up  and  signed,  and  which  was 
such  as  he  had  constantly  used,  had  upon  its 
face,  immediately  above  the  place  for  writing 
the  message,  the  printed  words,  "Send  the 
following  message,  subject  to  the  terms  on 
back  hereof,  which  are  hereby  agreed  to;" 
and,  just  below  the  place  for  his  signature, 
this  line:  "([[^"Read  the  notice  and  agree- 
ment on  back  of  this  blank  ..^." 

Upon  the  back  of  the  blank  were  conspicu- 
ously printed  the  words,  "AU  messages  taken 
by  this  company  are  subject  to  the  following 
terms,"  which  contained  the  following  condi- 
tions or  restrictions  of  the  liabiUty  of  the 
company: 

"[1]  To  guard  against  mistakes  or  delays, 
the  sender  of  a  message  should  order  it  RE- 
PEATED; that  is,  telegraphed  back  to  the 
originating  office  for  comparison.  For  this, 
one-half  the  regular  rate  is  charged  in  addi- 
tion. It  is  agreed  between  the  sender  of  the 
following  message  and  this  company  that 
said  company  shall  not  be  liable  for  mistakes 
or  delays  in  the  transmission  or  delivery  or 
for  nondelivery  of  any  unrepeated  message, 
whether  happening  by  negligence  of  its  serv- 
ants or  otherwise,  beyond  the  amount  re- 
ceived for  sending  the  same;  [2]  nor  for  mis- 
takes or  delays  in  the  transmission  or  deliv- 
ery or  for  nondelivery  of  any  kepeated  mes- 
sage beyond  fifty  times  the  sum  received  for 
sending  the  same,  unless  specially  insured; 
[3]  nor  in  any  case  for  delays  arising  from 
unavoidable  interruption  in  the  working  of 
its  lines,  or  for  errors  in  cipher  or  obscure 
messages."  After  stating  the  rates  at  which 
correctness  in  the  transmission  of  a  message 
may  be  insured,  it  is  provided  that  "no  em- 
ploye of  the  company  is  authorized  to  vary 
the  foregoing."  "[4]  The  company  will  not 
be  liable  for  damages  or  statutory  penalties 


m  any  case  where  the  claim  is  not  presented 
in  writing  within  sixty  days  after  the  mes- 
sage is  filed  with  the  company  for  transmis- 
sion." 

The  conditions  or  restrictions,  the  reason- 
ableness and  validity  of  which  are  directly 
involved  in  this  case,  are  that  part  of  the 
first  by  which  the  company  is  not  to  be  lia- 
ble for  mistakes  in  the  transmission  or  de- 
livery of  any  message  beyond  the  sum  re- 
ceived for  sending  it,  unless  the  sender  or- 
ders it  to  be  repeated  by  being  telegraphed 
back  to  the  originating  office  for  comparison, 
and  pays  half  that  sum  in  addition;  and  th;it 
part  of  the  third  by  which  the  company  is 
not  to  be  liable  at  all  for  errors  in  cipher  or 
obscm'e  messages. 

Telegraph  companies  resemble  railroad 
companies  and  other  common  carriers,  in 
that  they  are  instruments  of  commerce,  and 
in  that  they  exercise  a  public  employment, 
and  are  therefore  bound  to  serve  all  custom- 
ers alike,  without  discrimination.  They 
have,  doubtless,  a  duty  to  the  public  to  re- 
ceive, to  the  extent  of  their  capacity,  aU 
messages  clearly  and  intelligibly  written, 
and  to  transmit  them  upon  reasonable  terms. 
But  tlioy  are  not  common  carriers.  Their 
duties  are  different,  and  are  performed  in 
different  ways;  and  they  are  not  subject 
to  the  same  liabilities.  Express  Co.  v.  Cald- 
well, 21  Wall.  2G4,  269,  270;  Telegraph  Co.  v. 
Texas,  105  U.  S.  4'oO,  4G4. 

The  rule  of  the  common  law  by  which 
common  carriers  of  goods  are  held  liable 
for  loss  or  injury  by  any  cause  whatever,  ex- 
cept the  act  of  God  or  of  public  enemies,  does 
not  extend  even  to  warehousemen  or  wharf- 
ingers, or  to  any  other  class  of  bailees,  except 
innkeepers,  who,  like  carriers,  have  peculiar 
opportunities  for  embezzling  the  goods  or 
for  collusion  with  thieves.  The  carrier  has 
tlie  actiial  and  manual  possession  of  the 
goods.  The  identity  of  the  goods  which  he 
receives  with  those  which  he  delivers  can 
hardly  be  mistaken.  Their  value  can  be 
easily  estimated,  and  may  be  ascertained  by 
inquiry  of  the  consignor,  and  the  carrier's 
compensation  fixed  accordingly;  and  his  lia- 
bility in  damages  is  measured  by  the  value 
of  the  goods. 

But  telegi-aph  companies  are  not  bailees, 
in  any  sense.  They  are  intrusted  with  noth- 
ing but  an  order  or  message,  which  is  not  to 
be  carried  in  the  form  or  characters  in  which 
it  is  received,  but  is  to  be  translated  and 
transmitted  through  dift"erent  symbols,  by 
means  of  electricity,  and  is  peculiarly  liable 
to  mistakes.  The  message  cannot  be  the 
subject  of  embezzlement.  It  is  of  no  intrin- 
sic value.  Its  importance  cannot  be  estimat- 
ed, except  by  the  sender,  and  often  cannot 
be  disclosed  by  him  without  danger  of  de- 
feating his  piu-pose.  It  may  be  wholly  val- 
ueless, if  not  forwarded  immediately;  and 
the  measure  of  damages,  for  a  failure  to 
transmit  or  deliver  it,  has  no  relation  to  any 
value  of  tlie  message  itself,  except  as  such 
value  may  be  disclosed  by  the  message,  or 


mo 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


be  agreed  between  the  sender  and  the  com- 
pany. 

As  said  by  Mr.  Justice  Strong,  speaking 
for  this  court,  in  Express  Co.  v.  Caldwell, 
above  cited:  "Like  common  carriers,  they 
cannot  contract  with  their  employers  for  ex- 
emption from  liability  for  the  consequences 
of  their  own  negligence.  But  they  may  by 
such  contracts,  or  by  their  rules  and  regula- 
tions brought  to  the  knowledge  of  their  em- 
ployers, limit  the  measure  of  their  responsi- 
bility to  a  reasonable  extent.  Whether  their 
rules  are  reasonable  or  unreasonable  must 
be  determined  with  reference  to  public  poli- 
cy, precisely  as  in  the  case  of  a  carrier." 

By  the  settled  law  of  this  court,  common 
carriers  of  goods  or  passengers  cannot,  by 
any  contract  with  their  customers,  wholly 
exempt  themselves  from  liability  for  dam- 
ages caused  by  the  negligence  of  themselves 
or  their  servants.  Railroad  Co.  v.  Lock- 
wood,  17  Wall.  357;  Liverpool  &  G.  W. 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397, 
442.  9  Sup.  Ct.  469,  and  cases  cited. 

But  even  a  common  carrier  of  goods  may, 
by  special  contract  with  the  owner,  restrict 
the  sum  for  which  he  may  be  liable,  even  In 
case  of  a  loss  by  the  carrier's  negligence; 
and  this  upon  the  distinct  ground,  as  stated 
by  Mr.  Justice  Blatchford,  speaking  for  the 
whole  com't,  that  "whore  a  contract  of  the 
kind,  signed  by  the  shipper,  is  fairly  made, 
agreeing  on  the  valuation  of  the  property 
carried,  with  the  rate  of  freight  based  on 
the  condition  that  the  carrier  assumes  lia- 
bility only  to  the  extent  of  the  agi-eed  valu- 
ation, even  in  case  of  loss  or  damage  by  the 
negligence  of  the  carrier,  the  contract  will 
be  upheld  as  a  proper  and  lawful  mode  of 
securing  a  due  proportion  between  the 
amount  for  which  the  carrier  may  be  respon- 
sible and  the  freight  he  receives,  and  of  pro- 
tecting himself  against  extravagant  and  fan- 
ciful valuations."  Hart  v.  Railroad  Co.,  112 
U.  S.  331,  343,  5  Sup.  Ct.  151. 

By  the  regulation  now  in  question,  the  tele- 
graph company  has  not  undertaken  to  wholly 
exempt  itself  from  liability  for  negligence; 
but  only  to  require  the  sender  of  the  message 
to  have  it  repeated,  and  to  pay  half  as  much 
again  as  the  usual  price,  in  order  to  hold  the 
company  liable  for  mistalios  or  delays  in 
transmitting  or  delivering  or  for  not  deliv- 
ering a  message,  whether  happening  by  neg- 
ligence of  its  servants  or  otherwise. 

In  Telegraph  Co.  v.  Hall,  124  U.  S.  444, 
453,  8  Sup.  Ct.  577,  the  effect  of  such  a  regu- 
lation was  presented  by  the  certificate  of 
the  circuit  court,  but  was  not  passed  upon 
by  this  com't,  because  it  was  of  opinion 
that,  upon  the  facts  of  the  case,  the  damages 
claimed  were  too  uncertain  and  remote. 

But  the  reasonableness  and  validity  of  such 
regulations  have  been  upheld  in  McAndrew 
V.  Telegi-aph  Co.,  17  C.  B.  3,  and  in  Baxter 
v.  Telegi-aph  Co.,  37  U.  C.  Q.  B.  470,  as  well 
as  by  the  great  preponderance  of  authority 
in  this  country.  Only  a  few  of  the  principal 
cases  need  be  cited. 


In  the  earliest  AmeVican  case,  decided  by 
the  court  of  appeals  of  Kentucky,  the  reasons 
for  upholding  the  validity  of  a  regulation 
very  like  that  now  in  question  were  thus 
stated:  "The  public  are  admonished  by  the 
notice  that,  in  order  to  guard  against  mis- 
takes in  the  transmission  of  messages,  every 
message  of  importance  ought  to  be  repeated. 
A  person  desiring  to  send  a  message  is  thus 
apprised  that  there  may  be  a  mistake  in  its 
transmission,  to  guard  against  which  it  is 
necessary  that  it  should  be  repeated.  He  is 
also  notified  that,  if  a  mistake  occur,  the 
company  will  not  be  responsible  for  it  unless 
the  message  be  repeated.  There  is  nothing 
unreasonable  in  this  condition.  It  gives  the 
party  sending  the  message  the  option  to  send 
it  in  Fuch  a  manner  as  to  hold  the  company 
responsible,  or  to  send  it  for  a  less  price  at 
his  own  risk.  If  the  message  be  unimport- 
ant, he  may  be  willing  to  risk  it  without 
paying  the  additional  charge.  But  if  it  be 
important,  and  he  wishes  to  have  it  sent  cor- 
rectly, he  ought  to  be  willing  to  pay  the  cost 
of  repeating  the  message.  This  regulation, 
considering  the  accidents  to  which  the  busi- 
ness is  liable,  is  obviously  just  and  reasona- 
ble. It  does  not  exempt  the  company  from 
responsibility,  but  only  fixes  the  price  of  that 
responsibility,  and  allows  the  person  who 
sends  the  message  either  to  transmit  it  at 
his  own  risk,  at  the  usual  price,  or  by  paying 
in  addition  thereto  half  the  usual  price  to 
have  it  repeated,  and  thus  render  the  com- 
pany liable  for  any  mistake  that  may  occm*." 
Camp  V.  Telegi-aph  Co.,  1  Mete.  (Ky.)  1G4, 
1G8. 

In  Telegraph  Co.  v.  Carew,  15  Mich.  525, 
535,  53G,  the  supreme  court  of  Michigan  held 
that  a  similar  regulation  was  a  valid  part 
of  the  contract  between  the  company  and  the 
sender,  whether  he  read  it  or  not.  "The 
regulation,"  said  Chief  Justice  Christiancy, 
"of  most,  if  not  all,  telegraph  companies  op- 
erating extensive  lines,  allowing  messages  to 
be  sent  by  single  transmission  for  a  lower 
rate  of  charge,  and  requiring  a  larger  com- 
pensation when  repeated,  must  be  considered 
as  highly  reasonable,  giving  to  their  custom- 
ers the  option  of  either  mode,  according  to 
the  importance  of  the  message  or  any  other 
circumstance  which  may  affect  the  question." 
"The  printed  blank,  before  the  message  was 
written  upon  it,  was  a  general  proposition 
to  all  persons  of  the  terms  and  conditions 
upon  which  messages  would  be  sent.  By 
writing  the  message  under  it,  signing,  and  de- 
livering it  for  ti'ansmission,  the  plaintiff  be- 
low accepted  the  proposition,  and  it  became 
a  contract  upon  those  terms  and  conditions." 

In  Birney  v.  Telegraph  Co.,  18  Md.  341, 
358,  the  court  of  appeals  of  Maryland,  while 
recognizing  the  validity  of  similar  regulations, 
held  that  they  did  not  apply  to  a  case  in 
which  no  effort  was  made  by  the  telegrapli 
company  or  its  agents  to  put  the  message  on 
its  transit. 

In  Tclegi'aph  Co.  v.  Gildorsleve,  29  Md. 
232,  240,  248,  the  same  court,  speaking  by 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


361 


Mr.  Justice  Alvey  (since  chief  justice  of  Mary- 
land and  of  tlie  court  of  appeals  of  the  dis- 
trict of  Columbia),  said:  "The  appellant  had 
a  clear  right  to  protect  itself  against  extra- 
ordinary risk  and  liability  by  such  rules  and 
regulations  as  might  be  required  for  the  pur- 
pose." "The  appellant  could  not,  by  rules 
and  regulations  of  its  own  making,  protect 
itself  against  liability  for  the  consequences 
"Of  its  own  willful  misconduct  or  gross  neg- 
ligence or  any  conduct  inconsistent  with 
good  faith;  nor  has  it  attempted  by  its  rules 
and  regulations  to  afford  itself  such  exemp- 
tion. It  was  bound  to  use  due  diligence,  but 
not  to  use  extraordinary  care  and  precaution. 
The  appellee,  by  requii-ing  the  message  to  be 
repeated,  could  have  assured  himself  of  its 
dispatch  and  accurate  ti'ansmission  to  the 
■other  end  of  the  line,  if  the  wires  were  in 
working  condition;  or,  by  special  contract 
for  insurance,  could  have  secm-ed  himself 
against  all  consequences  of  nondelivery.  He 
did  not  think  proper,  however,  to  adopt  such 
precaution,  but  chose  rather  to  take  the  risk 
of  the  less  expensive  terms  of  sending  his 
message;  and,  having  refused  to  pay  the 
extra  charge  for  repetition  or  insm-ance, 
we  think  he  had  no  right  to  rely  upon  the 
•declai-ation  of  the  appellant's  agent  that  the 
.message  had  gone  through,  in  order  to  fix  the 
liability  on  the  company." 

In  Passmore  v.  Telegraph  Co.,  9  Phila.  90. 
78  Pa.  St.  238,  at  the  trial  in  the  district 
coiu-t  of  Philadelphia,  there  was  evidence 
that  Passmore,  of  whom  one  Edwards  had 
•offered  to  purchase  a  tract  of  land  in  West 
"Virginia,  wrote  and  delivered  to  the  company 
at  Parkersburg,  upon  a  blank  containing 
similar  conditions,  a  message  to  Edwards, 
at  Philadelphia,  in  these  words:  "I  hold  the 
Tibbs  tract  for  yoii;  all  will  be  right,"— but 
which,  as  delivered  by  the  company  in  Phila- 
delphia, was  altered  by  substituting  the 
word  "sold"  for  "hold;"  and  that  Edwards 
thereupon  broke  off  the  contract  for  the  pur- 
chase of  the  land,  and  Passmore  had  to  sell 
it  at  a  great  loss.  The  verdict  being  for  the 
plaintiff,  the  coiu't  reserved  the  question 
whether  the  defendant  was  liable,  inasmuch 
as  the  plaintiff  had  not  Insured  the  message 
nor  directed  it  to  be  repeated,  and  after- 
wards entered  judgment  for  the  defendant, 
notwithstanding  the  verdict,  in  accordance 
■with  an  opinion  of  Judge  Hare,  the  most  im- 
iwrtant  parts  of  which  were  as  follows: 

"A  railway,  telegraph,  or  other  company, 
■charged  with  aduty  which  concerns  the  public 
interest,  cannot  screen  themselves  from  lia- 
bility for  negligence;  but  they  may  prescribe 
rules  calculated  to  insiu-e  safety,  and  dimin- 
ish the  loss  in  the  event  of  accident,  and 
declare  that,  if  these  are  not  observed,  the 
injured  party  shall  be  considered  as  in  de- 
fault, and  precluded  by  the  doctrine  of 
contributory  negligence.  The  rule  must 
however,  be  such  as  that  reason,  which  is  said 
to  be  the  life  of  the  law,  can  approve;  or, 
at  the  least,  such  as  it  need  not  condemn. 


By  no  device  can  a  body  corporate  avoid 
liability  for  fraud,  for  willful  wrong,  or  for 
the  ^oss  negligence  which,  if  it  does  not  in 
tend  to  occasion  injury,  is  reckless  of  con- 
sequences, and  transcends  the  bounds  of 
right  with  full  knowledge  that  mischief  may 
ensue.  Nor,  as  I  am  inclined  to  think,  will 
any  stipulation  against  liability  be  valid 
which  has  the  pecuniary  interest  of  the  cor- 
poration as  its  sole  object,  and  takes  a  safe- 
guard from  the  public  without  giving  anything 
in  return.  But  a  rule  which,  in  marking  out 
a  path  plain  and  easily  accessible,  as  that  in 
which  the  company  guai-anties  that  every 
one  shall  be  secure,  declares  that,  if  any  man 
prefers  to  walk  outside  of  it.  they  will  ac- 
company him,  will  do  their  best  to  secure 
and  protect  him,  but  will  not  be  insurers, 
will  not  consent  to  be  responsible  for  acci- 
dents arising  from  fortuitous  and  unexpected 
causes,  or  even  from  a  want  of  care  and 
watchfulness  on  the  part  of  theu-  agents, 
may  be  a  reasonable  rule,  and,  as  such,  up- 
held by  the  com-ts." 

"The  function  of  the  telegi'aph  differs  from 
that  of  the  post  office  in  tliis:  that  while  the 
latter  is  not  concerned  with  the  contents  of 
the  missive,  and  merely  agrees  to  forward 
it  to  its  address,  the  former  undertakes  the 
much  more  difficult  task  of  transcribing  a 
message  written  according  to  one  method  of 
notation,  in  charactei*s  which  are  entirely 
different,  with  all  the  liability  to  error  neces- 
sarily incident  to  such  a  process.  Nor  is 
this  all.  The  telegraph  operator  is  separated 
by  a  distance  of  many  miles  from  the  paper 
on  which  he  writes,  so  that  his  eye  cannot 
discern  and  correct  the  mistakes  committed 
by  his  hand.  It  was  also  contended  during 
the  argument  that  the  electric  fluid  which  is 
used  as  the  medium  of  communication  is  lia- 
ble to  pertui'bations  arising  from  thunder 
storms  and  othor  natural  causes.  It  is  there- 
fore obvious  that  entire  accm*acy  cannot  al- 
ways be  obtained  by  the  greatest  care,  and 
that  the  only  method  of  avoiding  error  is  to 
compare  the  copy  with  the  original,  or,  in 
other  words,  that  the  operator  to  whom  the 
message  is  sent  should  telegi-aph  it  back  to 
the  station  whence  it  came." 

"Obviously  he  who  sends  a  communication 
is  best  qualified  to  judge  whether  it  should 
be  returned  for  correction.  If  he  asks  the 
company  to  repeat  the  rnessage,  and  they 
fail  to  comply,  they  will  clearly  be  answera- 
ble for  any  injury  that  may  result  from  the 
omission.  If  he  does  not  make  such  a  i"e- 
quest,  he  may  well  be  taken  to  have  acqui- 
esced in  the  conditions  which  they  prescribe, 
and  at  all  events  caDuot  object  to  the  want 
of  a  precaution  he  has  virtually  waived.  It 
is  not  a  just  ground  of  complaint  tliat  the 
power  to  choose  is  coupled  with  an  obligation 
to  pay  an  additional  sum  to  cover  the  cost  of 
repetition."  9  Phila.  92-94;  78  Pa.  St.  242- 
244. 

The  judgment  was  affirmed  by  the  supreme 
coiurt  of  Pennsylvania,  for  the  reasons  given 


362 


DAMAGES  IN  ACTIONS  AGAINST  TELEGKAPII  COMPANIES. 


by  .Tiulsre  Hare  and  above  stated.  78  Pa.  St. 
246;  Telcsrapli  Co.  v.  Stevcuson,  12S  Pa.  St 
442,  4.")r>,  18  Atl.  441, 

In  Brcose  v.  Tele.iiraph  Co.,  48  N.  Y.  i:V2, 
the  plaintiffs'  agent  wrote,  at  his  own  oilico 
in  Palmyra,  on  one  of  the  company's  blanks, 
substantially  like  that  now  before  us,  and 
delivered  to  the  company  at  Palmyra,  a  mes- 
sage addressed  to  brokers  in  New  York,  and 
in  these  words,  "Buy  us  seven  (.$700)  hundred 
dollars  in  gold."  In  the  statement  of  facts 
upon  which  the  case  was  submitted,  it  was 
agreed  that  he  had  never  read  the  printed 
part  of  the  blank,  and  that  "the  message 
thus  delivered  was  ti'ausmitted  from  the 
olhce  at  Palmyra  as  written;  but,  by  some 
error  of  the  defendant's  operators  working 
between  Palmyra  and  New  York,"  it  was 
received  in  New  York  and  delivered  in  this 
form,  "Buy  us  seven  thousand  dollars  in 
gold,"  and  the  brokers  accordingly  bought 
that  amount  for  the  plaintiffs,  who  sold  it  at 
a  loss.  It  was  held  that  there  was  no  evi- 
dence of  negligence  on  the  part  of  the  com- 
pany, and  that,  the  message  not  having  been 
repeated,  the  company  was  not  liable. 

In  Kiley  v.  Telegraph  Co.,  101)  N.  Y,  231, 
235-237,  16  N.  E.  75,  a  similar  decision  was 
made,  the  court  saying:  "That  a  telegraph 
company  has  the  right  to  exact  such  a  sLipu- 
lation  from  its  customers  is  the  settled  law 
in  this  and  most  of  the  other  states  of  the 
Union  and  in  England.  The  authorities  hold 
that  telegraph  companies  are  not  under  the 
obligations  of  common  carriers;  that  they 
do  not  insure  the  absolute  and  accurate  trans- 
mission of  messages  delivered  to  them;  that 
they  have  the  right  to  make  reasonable  regu- 
lations for  the  transaction  of  their  business, 
and  to  protect  themselves  against  liabilities 
which  they  would  otherwise  incm*  through 
the  carelessness  of  their  numerous  agents, 
and  the  mistakes  and  defaults  incident  to  the 
ti'ansaction  of  their  peculiar  business.  The 
stipulation  printed  in  the  blank  used  in  this 
case  has  frequently  been  under  consideration 
in  the  com'ts,  and  has  always  in  this  sta,te, 
and  generally  elsewhere,  been  upheld  as  rea- 
sonable." "The  evidence  brings  this  case 
within  the  terms  of  the  stipulation.  It  is  not 
the  case  of  a  message  delivered  to  the  oper- 
ator, and  not  sent  by  him  from  his  ofiice. 
This  message  was  sent,  and  it  may  be  infer- 
red from  the  evidence  that  it  went  so  far  as 
Buffalo,  at  least;  and  all  that  appears  fur- 
ther is  that  it  never  reached  its  destimition. 
Why  it  did  not  reach  there  remains  unex- 
plained. It  was  not  shown  that  the  failure 
was  due  to  the  willful  misconduct  of  the  de- 
fendant, or  to  its  gross  neghgence.  If  the 
plainti.T  had  requested  to  have  the  message 
repeated  back  to  him,  the  failure  would  have 
been  detected  and  the  loss  averted.  The  case 
is  therefore  brought  within  the  letter  and 
purpose  of  the  stipulation." 

In  the  supreme  judicial  court  of  Massachu- 
setts, the  reasonableness  and  validity  of  such 
regulations    have   been   repeatedly   affirmed. 


Ellis  V.  Telegraph  Co.,  13  Allen,  226;  Red'^ 
path  V.  Telegraph  Co.,  112  Mass.  71;  Grinnell 
V.  Telegraph  Co.,  113  Mass.  299;  Clement  v. 
Telegraph  Co.,  137  Mass.  463. 

Thi're  are  cases,  indeed,  in  which  such  reg- 
ulations have  been  considered  to  be  wholly 
void.  It  will  be  sullk-ient  to  refer  to  those 
specially  relied  on  by  the  learned  counsel  for 
the  plaintiff,  many  of  which,  however,  upon 
examination,  appear  to  have  .been  influenced 
by  considerations  which  have  no  apijlication- 
to  the  case  at  bar. 

Some  of  them  were  actions  brought,  not  by 
the  sender,  but  by  the  receiver,  of  the  mes- 
sage, who  had  no  notice  of  the  printed  con- 
ditions unitil  after  he  received  it,  and  could 
not  therefore  have  agreed  to  them  in  ad- 
vance. Such  were  Telegraph  Co.  v.  Dryburg, 
35  Pa.  St.  298;  Harris  v.  Telegraph  Co.,  9 
Philn.  88;  and  De  la  Grange  v.  Telegraph 
Co.,  25  La.  Ann.  383. 

Others  were  cases  of  night  messages,  in 
which  the  whole  provision  as  to  repi'aling 
was  omitted,  and  a  sweeping  and  compicijcn- 
sive  provision  substituted,  by  which,  in  ef- 
fect, all  liability  beyond  the  price  paid  was 
avoided.  True  v.  Telegraph  Co.,  60  Me.  9,  18; 
Bartlett  v.  Telegraph  Co.,  62  Me.  209,  215; 
Candee  v.  Telegraph  Co.,  34  Wis.  471,  476; 
Hibbard  v.  Telegraph  Co.,  33  Wis.  558,  5G1. 
In  Bartlett's  Case  the  com-t  said:  "Most,  if 
not  aU,  the  cases  upon  this  subject,  refer  to 
rules  requiring  the  repeating  of  messages  to- 
insm'e  accuracy,  and  seem  to  be  justilitd  in 
their  conclusion  on  the  ground  that,  owing 
to  the  liability  to  error  from  causes  beyond 
the  skill  and  care  of  the  operator,  it  is  but 
a  matter  of  common  care  and  prudence  to 
have  the  messages  i-epeated,  the  neglect  of 
which  in  messages  of  importance,  after  being, 
warned  of  the  danger,  is  a  want  of  care  on 
the  part  of  the  sender,  and,  as  the  p^-rson 
sending  the  message  is  presumed  to  be  the 
best  judge  of  its  importance,  he  must,  on  his 
own  responsibility,  make  his  election  wheth- 
er to  have  it  repeated."    62  Me.  216,  217. 

The  passage  cited  from  the  opinion  of  the 
circuit  com-t  of  appeals  in  Delaware  &  A. 
Telegraph  &  Telephone  Co.  v.  State,  3  U.  S. 
App.  30,  105,  2  C.  C.  A.  1,  and  50  Fed.  677,- 
in  which  the  same  judge  who  had  decided 
the  present  case  in  the  circuit  court  said,  "It 
is  no  longer  open  to  question  that  telephone 
and  telegraph  companies  ai'e  subject  to  the 
lilies  governing  conunon  cairiers  and  O'thers 
engaged  in  like  public  employment,"  had  re- 
gai'd,  as  is  evident  from  the  context,  and 
from  the  reference  to  Budd  v.  New  York,  143 
U.  S.  517,  12  Sup.  Ct.  468,  to  those  rules  only 
which  require  persons  or  corporations  exer- 
cising, a  public  employment  to  serve  all  alike, 
without  discrimination,  and  which  make- 
them  subject  to  legislative  regulation. 

In  Rittenhouse  v.  Independent  Line,  etc,  1 
Daly,  474,  44  N.  Y.  263.  and  in  Turner  v.  Tel- 
egi-aph  Co.,  41  Iowa,  458,  it  does  not  appear 
that  the  company  had  undertaken  to  resu'ict 
its  liability  by  express  stipulation. 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


36o 


The  Indiana  decisions  cited  appear  to 
have  been  conti-olled  by  a  statute  of  the  state 
enacting  that  telegi-aph  companies  should  "be 
liable  for  special  damages  occasioned  by  fail- 
ure or  negligence  of  their  operators  or  serv- 
ants in  receiving,  copying,  transmitting,  or 
delivering  despatches."  Telegraph  Co.  v. 
Meek,  49  Ind.  53;  Telegraph  Co.  v.  Fenton, 
52  Ind.  1. 

The  only  cases  cited  by  the  plaintiff  in 
which,  independently  of  statute,  a  stipulation 
that  the  sender  of  a  message,  if  he  would  hold 
the  company  liable  in  damages  beyond  the 
sum  paid,  must  have  it  repeated  and  pay  half 
that  sum  in  addition,  has  been  held  against 
public  policy  and  void,  appear  to  be  Tyler  v. 
Telegraph  Co.,  GO  111.  421,  74  111.  168;  Ayer  v. 
Telegraph  Co.,  79  Me.  493,  10  Atl.  495;  Tele- 
gi-aph  Co.  v.  Griswold,  37  Ohio  St.  301;  Tele- 
graph Co.  V.  Crall,  38  Kan.  679,  17  Pac.  309; 
Telegraph  Co.  v.  Howell,  38  Kan.  685,  17  Pac. 
313;  and  a  charge  to  the  jury  by  Mr.  Justice 
Woods,  when  circuit  judge,  as  reported  in 
Dorgan  v.  Telegraph  Co.,  1  Am,  Law  T.  (N. 
S.)  406,  Fed.  Cas.  No.  4,004,  and  not  included 
in  his  own  reports. 

The  fullest  statement  of  reasons,  perhaps, 
on  that  Fide  of  the  question,  is  to  be  found  in 
Tyler  v.  ."'elegraph  Co.,  above  cited. 

In  that  case  the  plaintiffs  had  written  and 
delivered  to  the  company  on  one  of  its  blauks, 
containing  the  usual  stipulation  as  to  repeat- 
ing, this  message,  addressed  to  a  broker: 
"Sell  one  hundred  (100)  Western  Union;  an- 
swer price."  In  the  message,  as  delivered  by 
the  company  to  the  broker,  the  message  was 
changed  by  substituting  "one  thousand 
(1,000)."  It  was  assumed  that  "Western 
Union"  meant  shares  in  the  Western  Union 
Telegraph  Company.  The  supreme  court  of 
Illinois  held  that  the  stipulation  was  "unjust, 
unconscionable,  without  consideration,  and 
utterly  void."     60  111.  439. 

The  propositions  upon  which  that  decision 
was  based  may  be  sufficiently  stated,  in  the 
very  words  of  the  court,  as  follows:  "Wheth- 
er the  paper  presented  by  the  company,  on 
which  a  message  is  written  and  signed  by  the 
sender,  is  a  contract  or  not,  depends  on  cir- 
cumstances;" and  "whether  he  had  knowl- 
edge of  its  terms,  and  consented  to  its  restric- 
tions, is  for  the  jm"y  to  determine  as  a  ques- 
tion of  fact,  upon  evidence  aliunde."  "Admit- 
ting the  paper  signed  by  the  plaintiffs  was  a 
contract,  it  did  not,  and  could  not,  exonerate 
the  company  from  the  use-  of  ordinary  care 
and  diligence,  both  as  to  their  insti-uments 
and  the  care  and  skiU  of  their  operators." 
"The  plaintiffs  having  proved  the  inaccuracy 
of  the  message,  the  defendants,  to  exonerate 
themselves,  should  have  shown  how  the  mis- 
take occm'red;"  and,  "in  the  absence  of  any 
proof  on  their  part,  the  jurj^  should  be  told 
the  presumption  was  a  Avant  of  ordinary  care 
on  the  part  of  the  company."  The  printed 
conditions  could  not  "protect  this  company 
from  losses  and  damage  occasioned  by  causes 
wholly  witiiin  their  own  control,"  but  "must 
be  confined  to  mistakes  due  to  the  infirmities 


of  telegraphy,  and  which  are  unavoidable." 
60  111.  431-433. 

The  effect  of  that  construction  would  be 
either  to  hold  telegraph  companies  to  be  sub- 
ject to  the  liability  of  common  carriers,  which 
the  com't  admitted  in  an  earlier  part  of  its 
opinion  that  they  were  not,  or  else  to  allow  to 
the  stipulation  no  effect  whatever;  for,  if  they 
were  not  common  carriers,  they  would  not, 
even  if  there  were  no  express  stipulation,  be 
liable  for  unavoidable  mistakes,  due  to  causes 
over  which  they  had  no  control. 

But  the  final,  and  apparently  the  principal, 
ground  for  that  decision,  was  restated  by  the 
court  when  the  case  came  before  it  a  second 
time,  as  follows:  "On  the  question  whether 
the  regulation  reqtiiring  messages  to  be  re- 
peated, printed  on  the  blank  of  the  company 
on  which  a  message  is  written,  is  a  contract, 
we  held  it  was  not  a  contract  binding  in 
law,  for  the  reason  the  law  imposed  upon  the 
companies  duties  »to  be  performed  to  the  pub- 
lic, and  for  the  performance  of  which  they 
were  entitled  to  a  compensation  fixed  by 
themselves,  and  which  the  sender  had  no 
choice  but  to  pay,  no  matter  hov/  exorbitant 
it  might  be.  Among  these  duties,  we  held, 
was  that  of  transmitting  messages  correctly; 
that  the  tai-iff  paid  was  the  consideration  for 
the  performance  of  this  duty  in  each  particu- 
lar case,  and,  when  the  charges  were  paid,  the 
duty  of  the  company  began,  and  there  was 
therefore  no  consideration  for  the  supposed 
contract  requiring  the  sender  to  repeat  the 
message  at  an  additional  cost  to  him  of  fifty 
per  cent,  of  the  original  charges."  74  111.  170, 
171, 

The  fallacy  in  that  reasoning  appears  to  us 
to  be  in  the  assumption  that  the  compauy,  un- 
der its  admitted  power  to  fix  a  reasonable 
rate  of  compensation,  establishes  the  usual 
rate  as  the  compensation  tor  the  duty  of 
transmitting  any  message  whatever;  where- 
as, what  the  company  has  done  is  to  fix  that 
rate  for  those  messages  only  which  are  trans- 
mitted at  the  risk  of  the  sender,  and  to  re- 
quire payment  of  the  higher  rate  of  half  as 
much  again  if  the  company  is  to  be  liable  for 
mistakes  or  delays  in  the  transmission  or  de- 
livery or  in  the  nondelivery  of  a  message. 

Indeed,  that  learned  cotirt  frankly  admitted 
that  its  decision  was  against  the  general  cttr- 
rent  of  authority,  saying:  "It  must,  however, 
be  conceded  that  there  is  great  harmony  in 
the  decisions  that  these  companies  can  pro- 
tect themselves  from  loss  by  contract,  and 
that  such  a  regulation  as  the  one  under  which 
appellees  defended  is  a  reasonable  regttlation, 
and  amounts  to  a  contract."  And,  again: 
"We  are  not  satisfied  with  the  grotmds  on 
which  a  majority  of  the  decisions  of  respect- 
able covu*ts  are  placed."     60  111.  430,  431,  43.j. 

In  the  case  at  bar,  the  message,  as  appeared 
by  the  plaintiff's  own  testimony,  was  written 
by  him  at  his  office  in  Philadelphia,  upon  one 
of  a  bunch  of  the  defendant's  blanks,  which 
he  kept  there  for  the  pm-pose.  Although  he 
testified  that  he  did  not  remember  to  have 
read  the  printed  matter  on  the  back,  he  did 


364 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


not  venture  to  say  that  he  had  not  read  It; 
still  less  that  he  had  not  read  the  brief  and 
clear  notices  thereof  upon  the  face  of  the 
message,  both  above  the  place  for  writing  the 
message  and  below  his  signature.  There  can 
be  no  doubt,  therefore,  that  the  terms  on  the 
back  of  the  message,  so  far  as  they  were  not 
inconsistent  with  law,  formed  part  of  the 
contract  between  him  and  the  company  un- 
der which  the  message  was  transmitted. 

The  message  was  addressed  by  the  plain- 
tiff to  his  own  agent  in  Kansas,  was  written 
in  a  cipher  imderstood  by  them  only,  and 
was  in  these  words:  "Despot  am  exceed- 
ingly busy  bay  all  kinds-  quo  perhaps  bracken 
half  of  it  mince  momt'Mt  promptly  of  pm*- 
chases."  As  delivered  by  the  company  to 
the  plaintiff's  agent  in  Kansas,  it  had  the 
words  "desti-oy"  instead  of  "despot,"  "buy" 
instead  of  "bay,"  and  "piu-chase"  instead  of 
"pmx-hases." 

The  message  having  been  sent  and  received 
on  June  luth,  the  mistake,  in  the  tirst  word,  of 
"despot"  for  "destroy,"  by  which,  for  a  word 
signifying  to  those  understanding  the  cipher, 
that  the  sender  of  the  message  had  received 
from  the  person  to  whom  it  was  addressed 
his  message  of  June  15th,  there  was  substi- 
tuted a  word  signifying  that  his  message  of 
Jime  17th  had  been  received  (which  was  evi- 
dently impossible),  could  have  had  no  other 
effect  than  to  put  him  on  his  guard  as  to 
the  accuracy  of  the  message  delivered  to 
him. 

The  mistake  of  substituting,  for  the  last 
word  "purchase,"  in  the  singular,  the  word 
"purchases,"  in  the  plural,  would  seem  to 
have  been  equally  unimportant,  and  is  not 
suggested  to  have  done  any  harm. 

The  remaining  mistake,  which  is  relied  on 
as  the  cause  of  the  injury  for  which  the 
plaintiff  seeks  to  recover  damages  in  this  ac- 
tion, consisted  in  the  change  of  a  single  let- 
ter, by  substituting  "u"  for  "a,"  so  as  to  put 
"buy"  in  the  place  of  "bay."  By  the  cipher 
code,  "buy"  had  its  common  meaning,  though 
the  message  contained  nothing  to  suggest  to 
any  one,  except  the  sender  or  his  agent,  what 
the  latter  was  to  buy;  and  the  word  "bay," 
according  to  that  code,  had  (what  no  one 
without  its  assistance  could  have  conjec- 
tured) the  meaning  of  "I  have  bought." 

The  impression  copies  of  the  papers  kept 
at  the  defendant's  offices  at  Brookville  and 
Ellis,  in  the  state  of  Kansas  (which  were  an- 
nexed to  the  depositions  of  operators  at  those 
offices,  and  given  in  evidence  by  the  plain- 
tiff at  the  trial),  prove  that  the  message  was 
duly  ti'ansmitted  over  the  greater  part  of  its 
route,  and  as  far  as  Brookville;  for  they 
put  it  beyond  doubt  that  the  message,  as  re- 
ceived and  written  down  by  one  of  the  opex'a- 
tors  at  Brookville,  was  in  its  original  form, 
and  that,  as  written  down  by  the  operator 
at  Ellis,  it  was  in  its  altered  form.  While 
the  testimony  of  the  deponents  is  conflicting, 
there  is  nothing  in  it  to  create  a  suspicion 
that  either  of  them  did  not  intend  to  tell  the 


truth;  nor  is  there  anything  in  the  case  tend- 
ing to  show  that  there  was  any  defect  in  the 
defendant's  insti-uments  or  equipment,  or 
that  any  of  its  operators  were  incompetent 
persons. 

If  the  change  of  words  in  the  message  was 
owing  to  mistake  or  inattention  of  any  of  the 
defendant's  servants,  it  would  seem  that  it 
must  have  consisted  either  in  a  want  of 
plainness  of  the  handwriting  of  Tindall,  the 
operator  who  took  it  down  at  Brookville,  or 
in  a  mistake  of  his  fellow  operator,  Stevens, 
in  reading  that  writing  or  in  ti*ansmitting  it 
to  Ellis,  or  else  in  a  mistake  of  the  operator 
at  Ellis  in  taking  down  the  message  at  that 
place.  If  the  message  had  been  repeated, 
the  mistake,  from  whatever  cause  it  arose, 
must  have  been  detected  by  means  of  the 
difffering  versions  made  and  kept  at  the  of- 
fices at  Ellis  and  Brookville. 

As  has  been  seen,  the  only  mistake  of  any 
consequence  in  the  transmission  of  the  mes- 
sage consisted  in  the  change  of  the  word 
"bay"  into  "buy,"  or  rather  of  the  letter  "a" 
into  "u."  In  ordinary  handwriting,  the  like- 
ness between  these  two  letters,  and  the  like- 
lihood of  mistaking  the  one  for  the  other, 
especially  when  neither  the  word  nor  the 
context  has  any  meaning  to  the  reader,  are 
familiar  to  all;  and  in  telegraphic  symbols, 
according  to  the  testimony  of  the  only  wit- 
ness upon  the  subject,  the  difference  between 
these  two  letters  is  a  single  dot. 

The  conclusion  is  irresistible  that,  if  there 
was  negligence  on  the  part  of  any  of  the  de- 
fendant's sei-vants,  a  jury  would  not  have 
been  warranted  in  finding  that  it  was  more 
than  ordinary  negligence;  and  that,  upon 
principle  and  authority,  the  mistake  was  one 
for  which  the  plaintiff,  not  having  had  the 
message  repeated  according  to  the  terms 
printed  upon  the  back  thereof,  and  forming 
part  of  his  contract  with  the  company,  could 
not  recover  more  than  the  sum  which  he  had 
paid  for  sending  the  single  message. 

Any  other  conclusion  would  restrict  the 
right  of  telegraph  companies  to  regulate  the 
amount  of  their  liability  within  narrower 
limits  than  were  allowed  to  common  carriers 
in  Hart  v.  Raih-oad  Co.,  already  cited,  in 
which  five  horses  were  delivered  by  the  plain- 
tiff to  a  raih-oad  company  for  transportation 
under  a  bill  of  lading,  signed  by  him  and  by 
its  agent,  which  stated  that  the  horses  were 
to  be  transported  upon  the  terms  and  con- 
ditions thereof,  "admitted  and  accepted  by" 
the  plaintiff  "as  just  and  reasonable,"  and 
that  freight  was  to  be  paid  at  a  rate  speci- 
fied, on  condition  that  the  carrier  assumed 
a  liability  not  exceeding  $200  on  each  horse; 
and  the  circuit  court,  and  this  court  on  writ 
of  error,  held  that  the  contract  between  the 
parties  could  not  be  controlled  by  evidence 
that  one  of  the  horses  was  killed  by  the  neg- 
ligence of  tlie  railroad  company,  and  was  a 
race  horse,  worth  $15,000.  2  McCrary,  333, 
7  Fed.  G30;    112  U.  S.  331,  5  Sup.  Ct.  151. 

It  is  also  to  be  remembered  that,  by  the 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


dijl 


third  condition  or  restriction  in  the  printed 
terms  forming  part  of  the  contract  between 
these  parties,  it  is  stipulated  that  the  com- 
pany shall  not  be  "liable  in  any  case"  "for 
errors  in  cipher  or  obscure  messages;"  and 
that  it  is  further  stipulated  that  "no  em- 
ploye of  the  company  is  authorized  to  vary 
the  foregoing,"  which  evidently  includes  this 
as  well  as  other  restrictions. 

It  is  difficult  to  see  anything  unreasonable 
or  against  public  policy  in  a  stipulation  that 
If  the  handwriting  of  a  message  delivered 
to  the  company  for  transmission  is  obscure, 
so  as  to  be  read  with  difficulty,  or  is  in 
cipher,  so  that  the  reader  has  not  the  usual 
assistance  of  the  context  in  ascertaining  par- 
ticular words,  the  company  will  not  be  re- 
sponsible for  its  miscarriage,  and  that  none 
of  its  agents  shall,  by  attempting  to  trans- 
mit such  a  message,  make  the  company  re- 
sponsible. 

As  the  message  was  taken  down  by  the 
telegraph  operator  at  Brookville  in  the  same 
words  in  which  it  was  delivered  by  the  plain- 
tiff to  the  company  at  Philadelphia,  it  is  evi- 
dent that  no  obscurity  in  the  message,  as 
originally  written  by  the  plaintiff,  had  any- 
thing to  do  with  its  failure  to  reach  its  ulti- 
mate destination  in  the  same  form. 

But  it  certainly  was  a  cipher  message,  and 
to  hold  that  the  acceptance  by  the  defend- 
ant's operator  at  Philadelphia  made  the  com- 
pany liable  for  errors  in  its  transmission 
would  not  only  disregard  the  express  stipu- 
lation that  no  employe  of  the  company  could 
vary  the  conditions  of  the  contract,  but  would 
wholly  nullify  the  condition  as  to  cipher 
messages,  for  the  fact  that  any  message  is 
written  in  cipher  must  be  apparent  to  every 
reader. 

Beyond  this,  under  any  contract  to  trans- 
mit a  message  by  telegraph,  as  under  any 
other  contract,  the  damages  for  a  breach 
must  be  limited  to  those  which  may  be  fairly 
considered  as  arising  according  to  the  usual 
course  of  things  from  the  breach  of  the  very 
contract  in  question,  or  which  both  parties 
must  reasonably  have  understood  and  con- 
templated, when  making  the  contract,  as 
likely  to  result  from  its  breach.  This  was 
directly  adjudged  in  Telegraph  Co.  v.  Hall. 
124  U."  S.  444,  8  Sup.  Ct.  577. 

In  Hadley  v.  Baxendale  (decided  in  1854) 
9  Exch.  345,  ever  since  considered  a  leading 
case  on  both  sides  of  the  Atlantic,  and  ap- 
proved and  followed  by  this  court  in  Tele- 
gi-aph  Co.  V.  Hall,  above  cited,  and  in  How- 
ard V.  Manufactm-ing  Co.,  139  U.  S.  199,  20(3, 
207,  11  Sup.  Ct.  500;  Baron  Alderson  laid 
down,  as  the  principles  by  which  the  jury 
ought  to  be  guided  in  estimating  the  dam- 
ages arising  out  of  any  breach  of  con- 
tract, the  following:  "Where  two  parties 
have  made  a  contract  which  one  of  them 
has  broken,  the  damages  which  the  other 
party  ought  to  receive  in  respect  of  such 
breach  of  contract  should  be  such  as 
may   fairly   and    reasonably   be    considered 


either  arising  naturally— i.  e.  according  to  the 
usual  course  of  things— from  such  breach  of 
contract  itself,  or  such  as  may  reasonably 
be  supposed  to  have  been  in  the  contempla- 
tion of  both  parties,  at  the  time  they  made 
the  contract,  as  the  probable  result  of  the 
breach  of  it.  Now,  if  the  special  circum- 
stances under  which  the  contract  was  actual- 
ly made  were  communicated  by  the  plaintiff.s 
to  the  defendants,  and  thus  known  to  both 
parties,  the  damages  resulting  from  the 
breach  of  such  a  contract,  which  they  would 
reasonably  contemplate,  would  be  the  amount 
of  injury  which  w^ould  oi'dinarily  follow  from 
a  breach  of  contract  under  these  special  cir- 
cumstances so  known  and  communicated. 
But,  on  the  other  hand,  if  these  special  cir- 
cumstances were  wholly  unknown  to  the 
party  breaking  the  contract,  he,  at  the  most, 
could  only  be  supposed  to  have  had  in  his 
contemplation  the  amount  which  would  arise 
generally,  and  in  the  great  multitude  of  cases 
not  affected  by  any  special  circumstances, 
from  such  a  breach  of  contract."  9  Exch. 
354,  355. 

In  Sanders  v.  Stuart,  which  was  an  action 
by  commission  merchants  against  a  person 
whose  business  it  was  to  collect  and  trans- 
mit telegraph  messages,  for  neglect  to  trans- 
mit a  message  in  words  by  themselves  wholly 
unintelligible,  but  which  could  be  understood 
by  the  plaintiffs'  correspondent  in  New  York 
as  giving  a  large  order  for  goods,  whereby 
the  plaintiffs  lost  profits,  which  they  would 
otherwise  have  made  by  the  transaction,  to 
the  amount  of  £150,  Lord  Chief  .Justice  Coler- 
idge, speaking  for  himself  and  Lords  Jus- 
tices Brett  and  Lindley,  said:  "Upon  the 
facts  of  this  case,  we  think  that  the  rule  in 
Hadley  v.  Baxendale  applies,  and  that  the 
damages  recoverable  are  nominal  only.  It 
is  not  necessary  to  decide,  and  we  do  not 
give  any  opinion,  how  the  case  might  be  if 
the  message,  instead  of  being  in  language 
utterly  unintelligible,  had  been  conveyed  in 
plain  and  intelligible  words.  It  was  con- 
veyed in  terms  which,  as  far  as  the  defend- 
ant was  concerned,  were  simple  nonsense. 
For  this  reason,  the  second  portion  of  Baron 
Alderson's  rule  clearly  applies.  No  such 
damages  as  above  mentioned  could  be  'rea- 
sonably supposed  to  have  been  in  the  con- 
templation of  both  parties,  at  the  time  they 
made  the  contract,  as  the  probable  result 
of  the  breach  of  it;'  for  the  simple  reason 
that  the  defendant,  at  least,  did  not  know 
what  his  contract  was  about,  nor  what  nor 
whether  any  damage  would  follow  from  the 
breach  of  it.  And  for  the  same  reason,  viz. 
the  total  ignorance  of  the  defendant  as  to 
the  subject-matter  of  the  contract  (an  ignor- 
ance known  to,  and  indeed  intentionally  pro- 
cured by,  the  plaintiffs),  the  ffi-st  portion  of 
the  rule  applies  also;  for  there  are  no  dam- 
ages more  than  nominal  which  can  'fairly 
and  reasonably  be  considered  as  arising  nat- 
urally—i.  e.  according  to  the  usual  course  of 
things— from  the  breach'  of  such  a  contract 


366 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


as  this."  1  C.  P.  Div.  32G,  32S,  45  Law  J. 
O.  P.  GS2,  684. 

In  Telegi-apli  Co.  v.  Gildersleve,  already  re- 
ferred to,  which  was  an  action  by  the  sender 
against  a  telegraph  company  for  not  deliver- 
ing this  message  received  by  it  in  Baltimore, 
addressed  to  brokers  in  New  York,  •"Sell 
fifty  (50)  gold,"  Mr.  Justice  Alvey,  speaking 
for  the  court  of  appeals  of  Maryland,  and  ap- 
plying the  rule  of  Iladley  v.  Baxendale.  above 
cited,  said:  "While  it  was  proved  that  the 
dispatch  in  question  would  be  understood 
among  brokers  to  mean  fifty  thousand  dol- 
lars of  gold,  it  was  not  shown,  nor  was  it 
put  to  the  jiiry  to  find,  that  the  appellant's 
agents  so  understood  it,  or  whether  they  un- 
derstood it  at  all.  'Sell  fifty  gold'  may  have 
been  understood  in  its  literal  import,  if  it 
can  be  properly  said  to  have  any,  or  was  as 
likely  to  be  taken  to  mean  fifty  dollars  as 
fifty  thousand  dollars  by  those  not  initiated; 
and,  if  the  measure  of  responsibility  at  aU 
depends  upon  a  knowledge  of  the  special  cir- 
cumstances of  the  case,  it  would  certainly 
follow  that  the  nature  of  this  dispatch  should 
have  been  communicated  to  the  agent  at  the 
time  it  was  offered  to  be  sent,  in  order  that 
the  appellant  might  have  observed  the  pre- 
cautious iieci'ssary  to  guard  itself  against  the 
risk.  But  without  reference  to  the  fact  as 
to  whether  the  appellant  had  knowledge  of 
the  true  meaning  and  character  of  the  dis- 
patch, and  was  thus  enabled  to  contemplate 
the  consequences  of  a  breach  of  the  contract, 
the  jury  were  instructed  that  the  appellee 
was  entitled  to  recover  to  the  full  extent  of 
his  loss  by  the  decline  in  gold.  In  thus  in- 
structing the  jury,  we  think  the  coiu*t  com- 
mitted error,  and  that  its  ruling  should  be 
reversed."     29  Md.  232,  251. 

In  Baldwin  v.  Telegraph  Co.,  which  was  an 
action  by  the  senders  against  the  telegraph 
company  for  not  delivering  this  message, 
"Telegraph  me  at  Rochester  what  that  well 
is  doing,"  Mr.  Justice  Allen,  speaking  for  the 
com't  of  appeals  of  New  York,  said:  "The 
message  did  not  import  that  a  sale  of  any 
property  or  any  business  transaction  hinged 
upon  the  prompt  delivery  of  it,  or  upon  any 
answer  that  might  be  received.  For  all  the 
purposes  for  which  the  plaintiffs  desired  the 
information,  the  message  might  as  well  have 
been  in  a  cipher  or  in  an  unknown  tongue. 
It  indicated  nothing  to  put  the  defendant  up- 
on the  alert,  or  from  which  it  could  be  in- 
ferred that  any  special  or  peculiar  loss  would 
ensue  from  a  nondelivery  of  it.  Whenever 
special  or  extraordinary  damages,  such  as 
would  not  naturally  or  ordinarily  follow  a 
breach,  have  been  awarded  for  the  nonper- 
formance of  contracts,  whether  for  the  sale 
or  carriage  of  goods  or  for  the  delivery  of 
messages  by  telegraph,  it  has  been  for  the 
reason  that  the  contracts  have  been  made 
with  reference  to  peculiar  circumstances 
known  to  both,  and  the  particular  loss  has 
been  in  the  contemplation  of  both,  at  the 
time  of  making  the  contract,  as  a  contingen- 


cy that  might  follow  the  nonperformance." 
"The  dispatch  not  indicating  any  pm'posc 
otlier  than  that  of  obtaining  such  information 
as  an  owner  of  property  might  desire  to  have 
at  all  times,  and  without  reference  to  a  sale, 
or  even  a  stranger  might  ask  for  purposes  en- 
tirely foreign  to  the  property  itself,  it  is  very 
evident  that,  whatever  may  have  been  th(> 
special  purpose  of  the  plaintiffs,  the  defend- 
ant had  no  knowledge  or  means  of  knowledgr 
of  it,  and  could  not  have  conteinplatod  either 
a  loss  of  a  sale,  or  a  sale  at  an  undervalue, 
or  any  other  disposition  of  or  dealing  with 
the  well  or  any  other  property,  as  the  proba- 
ble or  possible  result  of  a  breach  of  its  con- 
tract. The  loss  which  would  naturally  and 
necessarily  result  from  the  failure  to  deliver 
the  message  would  be  the  money  paid  for  its 
te'ansmission,  and  no  other  damages  can  be 
claimed  upon  the  evidence  as  resulting  from 
the  alleged  breach  of  duty  by  the  defendant." 
45  N.  Y.  744,  749,  750,  752.  See,  also,  Hart 
V.  Cable  Co.,  86  N.  Y.  633. 

The  supreme  court  of  Illinois,  in  Tyler  v. 
Telegraph  Co.,  above  cited,  took  notice  of  the 
fact  that  in  that  case  "the  dispatch  disclosed 
the  nature  of  the  business  as  fully  as  the  case 
demanded."  60  111.  434.  And  in  the  recent 
case  of  Cable  Co.  v.  Lathrop  the  same  court 
said:  "It  is  clear  enough  that,  applying  the 
rule  in  Hadley  v.  Baxendale,  supra,  a  recov- 
ery cannot  be  had  for  a  failure  to  correctly 
transmit  a  mere  cipher  dispatch,  unexplained, 
for  the  reason  that  to  one  unacquainted  with 
the  meaning  of  the  ciphers  it  is  wholly  unin- 
telligible and  nonsensical.  An  operator  would 
therefore  be  justifiable  in  saying  that  it  can 
contain  no  information  of  value  as  pertain- 
ing to  a  business  transaction,  and  a  failure  to 
send  it  or  a  mistake  in  its  transmission  can 
reasonably  result  in  no  pecunhiry  loss."  131 
lU.  575,  585,  23  N.  E.  583. 

The  same  rule  of  damages  has  been  applied, 
upon  failure  of  a  telegraph  company  to  trans- 
mit or  deliver  a  cipher  message,  in  one  of  the 
Wisconsin  cases  cited  by  the  plaintiff,  and  in 
many  cases  in  other  courts.  Candee  v.  Tele- 
graph Co.,  34  Wis.  471,  479-481;  Beaupre  v. 
Telegraph  Co.,  21  Minn.  155;  Mackay  v.  Tele- 
graph Co.,  16  Nev.  222;  Daniel  v.  Telegraph 
Co.,  61  Tex.  452;  Cannon  v.  Telegraph  Co., 
100  N.  C.  300,  6  S.  E.  731;  Telegraph  Co.  v. 
Wilson,  82  Fla.  527,  14  South.  1;  Behm  v. 
Telegi-aph  Co.,  8  Biss.  131,  Fed.  Cas.  No. 
1,234;  Telegraph  Co.  v.  Martin.  9  111.  App. 
587;  Abeles  v.  Telegraph  Co.,  37  Mo.  App. 
554;  Kinghorne  v.  Telegi-aph  Co.,  18  U.  C.  Q. 
B.  60,  69. 

In  the  present  case  the  message  was,  and 
was  evidently  intended  to  be,  wholly  unintel- 
ligible to  the  telegi'aph  company  or  its  agents. 
They  were  not  informed,  by  the  message  or 
otherwise,  of  the  nature,  importance,  or  ex- 
tent of  the  transaction  to  which  it  related,  or 
of  the  position  which  the  plaintiff  would 
probably  occupy  if  the  message  were  correct- 
ly transmitted.  Mere  knowledge  that  the 
plaintiff  was  a  wool  merchant,  and  that  To- 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


367 


land  was  in  bis  employ,  had  no  tendency  to 
sliow  what  the  message  was  about.  Accord- 
ing to  any  understanding  wliich  the  tele- 
graph company  and  its  agents  had,  or  which 
the  plaintiff  could  possibly  have  supposed 
that  they  had,  of  the  contract  between  these 
parties,  the  damages  which  the  plaintift  seeks 
to  recover  in  this  action,  for  losses  upon  wool 
purchased  by  Toland,  were  not  such  as  could 
reasonably  be  considered,  either  as  arising, 
according  to  the  usual  course  of  thiugs,  from 
the  supposed  breach  of  the  contract  itself,  or 
AS  having  been  in  the  contemplation  of  both 


parties,  when  they  made  the  contract,  as  a 
probable  result  of  a  breach  of  it. 

In  any  view  of  the  case,  therefore,  it  was 
rightly  ruled  by  the  circuit  court  that  the 
plaintiff  could  recover  in  this  action  no  more 
Uian  the  sum  which  he  had  paid  £or  sending 
the  message.     Judgment  affirmed. 

Mr.  Chief  Justice  FULLER  and  Mr.  Justice 
HARLAN  dissented. 

Mr.  Justice  WHITE,  not  having  been  a 
member  of  the  court  when  this  case  was  ar- 
gued, took  no  part  in  its  decision. 


368 


DAMAGES  IX  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


WESTERN  UNION  TEL.  CO.  v.  WILSON. 
(14  South.  1,  32  Fla.  527.) 

Supreme  Court  of  Florida.    Nov.  8,  1893. 

Appeal  from  circuit  court,  Escambia  coun- 
tj-;   Jame-s  F.  McClellan,  Judse. 

Action  by  Cliarles  M.  Wilson  against  tbe 
Western  Union  Telegraph  Company  for  a 
faiUu-e  to  transmit  and  deliver  a  message. 
Plaintiff  had  judgment,  and  defendant  ap- 
peals.    Reversed. 

Mallory  &  Maxwell,  for  appellant  John 
C.  Avery,  for  appellee. 

TAYLOR,  J.  The  appellee  sued  the  ap- 
pellant in  the  ca-cuit  court  of  Escambia 
county,  in  case,  for  damages  for  its  failm-e 
to  ti-ansmit  and  deliver  a  telegraphic  mes- 
sage in  cipher.  The  suit  resulted  in  a  judg- 
ment for  the  plaintiff  in  the  sum  of  9=088.88, 
and  therefrom  the  defendant  telegi-aph  com- 
pany appeals. 

The  declaration  alleges  as  follows:  "That 
the  Western  Union  Telegraph  Company,  a 
corporation,  the  defendant,  on  the  12th  day 
of  December,  1887,  was  engaged  in  the  busi- 
ness of  transmitting  telegraphic  messages 
betAveen  Pensacola,  Fla.,  and  New  York,  in 
the  state  of  New  York,  and  in  the  delivery 
thereof  to  other  cable  and  telegi-aph  com- 
panies for  transmission  to  Liverpool,  Eng- 
land, v.Jiere  the  said  plaintiff  had  a  regular 
m(>rchant  broker  or  agent,  to  wit,  one  A. 
Dobell,  through  whom  the  plaintiff  negoti- 
ated, by  means  of  such  messages,  the  sale  in 
Ijm'ope  of  cargoes  of  lumber  and  timber,  the 
plaintiff  being  then  and  there  a  timber  and 
lumber  merchant  at  the  city  of  Pensacola. 
That  on  said  day  the  plaintiff  delivered  to 
the  defendant,  and  the  defendant  received 
from  him  at  its  office  in  the  city  of  Pensa- 
cola, and  undertook  to  transmit  and  cause 
to  be  transmitted,  and  it  was  its  duty  to 
transmit  and  cause  to  be  transmitted,  to  the 
said  A.  Dobell,  the  following  cipher  message: 
'Dobell,  Liverpool:  Gladfulness— shipment— 
rosa  —  bouhcm"  —  luciform  —  banewort  — 
margin,'— which  the  said  Dobell  would  have 
undei'stood,  and  the  plaintiff"  intended  to  be 
an  offer  of  a  cargo  of  lumber  and  timber 
from  said  port  of  Pensacola  for  sale  through 
the  said  Dobell  in  Europe,  and  the  said  Do- 
bell would  have  sold  the  same  for  the  plain- 
tiff on  the  terms  of  said  offer  at  a  proht  to 
the  plaintiff  of  twelve  hundred  dollars,  but 
the  defendant  failed  and  neglected  to  send 
the  said  message,  in  violation  of  its  duty 
to  the  plaintiff,  and  to  the  plaintiff's  loss  of 
.^1,200,"  and  therefore  he  sues,  etc. 

At  the  trial  the  plaintiff,  over  the  defend- 
ant's objection,  was  permitted  to  testify,  in 
establishment  of  the  damages  claimed,  that 
he  had  to  sell  his  cargo  of  lumber  in  Em'ope 
upon  the  market  for  the  best  price  he  could 
get,  which  was  52  shillings  a  load,  and 
which  amounted  to  $630.84  less  than  the 
price  at  which  he  offered  same  for  sale  in 
the  message  failed  to  be  sent.     The  over- 


ruled objection  of  the  defendant  to  this  testi- 
mony was  that  the  damage  sought  to  be  shown 
thereby  was  too  remote,  and  was  not  in  the 
contemplation  of  the  parties  at  the  time  of 
the  alleged  making  of  the  contract  for  the 
ti-ansmission  of  said  message.  To  this  rul- 
ing the  defendant  excepted,  and  it  is  assigned 
as  error.  The  question  presented  is,  what  is 
the  proper  measiu-e  of  damages  to  be  re- 
covered of  a  telegraph  company  holding  it- 
self out  to  the  service  of  the  public,  for  hire,- 
as  the  transmitter  of  messages  by  electricity,, 
upon  its  failiu"e  to  transmit  or  deliver  a  mes- 
sage written  in  cipher,  or  in  language  un- 
intelligible except  to  those  having  a  key  to- 
its  hidden  meaning.  As  this  question  has 
heretofore  been  passed  upon  by  this 
com't  conti-ary  to  the  views  we  find  it  im- 
possible to  become  divested  of,  and,  as  we- 
think,  contrary  to  the  great  weight  of  the 
well-reasoned  adjudications  both  in  this 
country  and  in  England,  we  take  it  up  with 
diffidence  that  finds  no  palliative  in  the  fact 
that  the  decision  heretofore  was  by  a  di- 
vided com-t.  Telegraph  Co.  v.  Hyer,  22  Fla. 
637,  1  South.  129.  In  that  case  the  majority 
of  the  court,  while  approving  the  following- 
well-established  rule  first  formulated  in. 
reference  to  carriers  of  goods  in  the  cause 
celebre  of  Hadley  v.  Baxendale,  9  Exch. 
341:  "Where  two  parties  have  made  a  con- 
tract, which  one  of  them  has  brolcen,  the- 
damages  which  the  other  party  ought  to  re- 
ceive in  respect  of  such  breach  of  contract 
should  be  either  such  as  may  fairly  and  sub- 
stantially be  considered  as  arising  naturally,, 
i.  e.  according  to  the  usual  com'se  of  things, 
from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the 
time  they  made  the  conti'act,  as  the  probable 
result  of  the  breach  of  it,"— hold  that  it  has 
no  applicability  to  the  contracts  of  telegraph 
companies  for  the  transmission  of  messages, 
and  that  such  companies  may  be  justly  con- 
sidered and  treated  as  standing  alone,— a 
system  unto  itself.  The  reasoning  leading 
to  this  conclusion  is  as  follows:  "The  com- 
mon carrier  charges  different  rates  of  freight 
for  different  articles,  according  to  their  bulk 
and  value,  and  their  respective  risks  of 
ti-ausportation,  and  provides  different  meth- 
ods for  the  ti-ansportation  of  each.  It  is  not 
shown  here  that  the  defendant  company 
had  any  scale  of  prices  which  were  higher 
or  lower,  as  the  importance  of  the  dispatch 
was  great  or  small.  It  cannot  be  said,  then, 
that  for  this  reason  the  operator  should  be 
informed  of  its  importance,  when  it  made 
no  difference  in  the  charge  of  transmission. 
It  is  not  shown  that,  if  its  importance  had 
been  disclosed  to  the  operator,  that  he  was  re- 
quired by  the  rules  of  the  company  to  send 
the  message  out  of  the  order  in  which  it 
came  to  the  office,  with  reference  to  other 
messages  awaiting  transmission;  that  he 
was  to  use  any  extra  degree  of  skill,  any 
ditferent  method  or  agency  for  sending  it, 
from  the  time,  the  skill  used,   the  agencies 


DAMAGES  IN  ACTIONS  AGAINST  TELEGUAl'll  COMPANIES. 


^69 


ouiployed,  or  the  coiniTons'itioii  demanded 
for  sending  an  unimportant  dispatch,  or  that 
it  would  aid  the  operator  in  its  transmission. 
For  what  reason,  then,  could  he  demand  in- 
formation that  was  in  no  way  whatever  to 
afi'ect  his  manner  of  action,  or  impose  on 
him  any  additional  obligation?  It  could 
only  operate  on  him  persuasively  to  perform 
a  duty  for  which  he  had  been  paid  the  price 
he  demanded,  which,  in  consideration  thereof, 
he  had  agreed  to  perform,  and  which  the 
law,  in  considevatiou  of  his  promise,  and  the 
reception  of  the  consideration  therefor,  had 
already  enjoined  on  him."  The  answer  to 
all  this  is  that  the  same  argument  is  equally 
applicable  as  a  reason  why  the  rule  in  Had- 
ley  V.  Baxeadale  should  not  apply  to  carriers 
of  goods  for  hire.  The  carrier  of  goods,  in 
contracting  to  carry  and  deliver,  deals  with 
the  tangible.  When  he  contracts,  he  has  in 
his  mind's  eye,  from  the  visible,  tangible 
subject  of  his  contract,  what  will  be  the 
probable  damage  resulting  directly  from  a 
breach  of  it  on  his  part,  and  so  has  the 
other  party  to  the  contract  with  the  carrier. 
Therefore,  the  damage  likely  to  flow  from 
a  breach  by  the  carrier  can  properly  be  said 
to  enter  mutually  into  the  contemplation  of 
both  parties  to  the  contract,  and  it  is  this 
nmtuality  in  thecontemplationof  both  parties 
to  the  contract  of  the  results  that  will  be 
likely  to  flow  directly  from  its  breach  that 
really  fm-nishes  that  equitable  featm*e  of  the 
rule  that  the  damages  thus  nuitually  contem- 
plated are  in  fact  the  damages  that  the  law 
will  impose  for  the  breach.  Why?  Because, 
in  the  eye  of  the  law,  the  parties  having 
mutually  contemplated  such  damages  in  go- 
ing into  such  contract,  those  damages  can 
alone  be  inferred  as  having  entered  into  their 
contract  as  a  silent  element  thereof.  The  rule 
in  Hadley  v.  Baxendale  is  applicable  alone  to 
breaches  of  contract,  and  formulates  con- 
cisely the  measm-e  of  damages  for  the  breach 
of  those  contracts  that  do  not  within  them- 
selves, in  express  terms,  fix  the  penalty  to 
follow  their  breach.  In  other  words,  this 
rule  does  uothing  more  than  to  give  ex- 
pression to  that  part  of  the  contract  whicli. 
in  the  eye  of  the  law,  has  been  nuitually 
agreed  upou  between  the  parties,  but  con- 
cerning which  their  contract  itself  is  silent. 
This  essential  leading  feature  of  the  rule,  we 
think,  was  wholly  lost  sight  of  in  the  discus- 
sion of  the  question  in  Telegraph  Co.  v.  Hyer, 
supra,  i.  e.  that  the  damages  provided  for  un- 
der the  rule  arise  ex  contractu,  and  that,  un- 
less there  is  mutuality  in  all  the  es^seutial  ele- 
ments that  enter  into  or  grow  out  of  the 
contract,  the  whole  fabric  becomes  unilateral, 
and  abhorrent  in  the  eyes  of  the  law.  The 
assertion,  as  a  rule  of  law,  that  one  party  to 
a  contract  shall  alone  have  knowledge  that 
a  breach  of  that  contract  will  directly  re- 
sult in  the  loss  of  thousands  of  dollars,  and 
that  upon  such  breach  he  can  recover  of  the 
other  party  to  the  contract  all  of  such,  to 
him,  unforeseen,  unexpected,  uncontemplated, 
nonconsenled-to  damages,  seems  to  us  to 
IvAW  DAM.2d  Ed.— 24 


bo  a  complete  upheaval  of  all  the  old  laud- 
marks  in  reference  to  damages  upon  broken 
contracts,  and  +hG  establishment  of  a  new 
rule,  that  is  neither  fair,  just,  or  equitable, 
and  which,  if  it  is  to  bo  applied  to  the  brokcu 
contracts  of  telegraph  companies,  must  also, 
according  to  every  principle  of  consistency, 
be  applied,  under  like  conditions,  to  ever}'- 
violated  contract  where  individuals  are  the 
contracting  parties.  The  argument  in  Tele- 
graph Co.  V.  Hyer,  supra,  that  it  was  not 
shown  that  the  telegraph  company  would 
have  charged  more,  or  used  more  dispatch, 
or  taken  more  care,  or  been  aided  in  any 
way  in  the  performance  of  its  duty,  if  it  had 
been  informed  of  the  contents  or  pm-port  of 
the  message  contracted  to  be  sent  in  that 
case,  is  entirely  foreign  to  the  question.  In 
arriving  at  the  rule  of  law  as  to  the  damage 
that  parties  to  contracts  are  entitled  to,  as 
matter  of  legal  right,  upon  breach  thereof,^ 
a  consideration  of  anything  that  might  or 
might  not  in  fact  have  prevented  the  wrong- 
ful breach  has  nothing  to  do  with  the  sub- 
ject whatever.  But  we  are  to  look  to  and 
consider  the  mutual  rights  of  the  parties 
from  the  inception  of  the  contractual  rela- 
tions between  them,  down  through  the  con- 
tract itself,  to  the  breach  complained  of. 
One  of  the  primary  rights  that  each  party 
has,  who  is  about  to  enter  into  a  contract 
with  another,  a  breach  of  which  may  result 
in  damage,  is  to  be  so  situated  that  he  may 
foresee  what  direct,  probable  results  will 
reasonably,  and  in  the  usual  com-se  of 
events,  follow  bad  faith,  neglect,  or  other 
breach  upon  his  part.  Why?  Not  that  it 
will  or  will  not  in  fact  deter  him  from  being 
delinquent,  but  that  he  may,  if  he  will,  so 
act  as  to  guard  against  and  avoid,  for  his 
own  benefit,  the  foreseen,  calamitous  conse- 
quence, or  that  he  may,  if  he  does  not,  be 
held  to  have  knowingly  and  willingly  sub- 
jected himself  to  the  contemplated  conse- 
quences of  his  wrong,  that,  from  being  fore- 
seen and  contemplated,  the  law  will  impute 
his  consent  thereto. 

That  the  rule  formulated  in  Hadley  v.  Bax- 
endale, supra,  is  the  one  properly  ap- 
plicable to  the  contracts  of  telegraph  com- 
panies for  the  ti'ansmission  of  messages  has 
the  support  of  the  overwhelming  weight  of 
the  decided  cases,  not  only  as  to  the  numer- 
ical strength  of  the  decisions  concurnng 
therein,  but  in  the  logical  soundness  of  the 
reasoning  upon  which  their  conclusions  rest, 
as  will  be  seen  from  the  following  authori- 
ties: Telegraph  Co.  v.  Hall,  124  U.  S.  444, 
8  Sup.  Ct.  577;  Sanders  v.  Stuart,  1  C.  P. 
Div.  326;  Behm  y.  Telegraph  Co.,  8  Biss.  131  ;i 
White  v.  Telegraph  Co.,  14  Fed.  710;  Bald- 
win V.  Telegi-aph  Co.,  45  N.  Y.  744;  Tele- 
graph Co.  V.  Graham.  1  Colo.  230;  First 
Nat.  Bank  v.  W.  U.  Tel.  Co.,  30  Ohio  St.  555; 
Candee  v.  Telegraph  Co.,  34  Wis.  471;  Dan- 
iel V.  Telegraph  Co.,  Gl  Tex.  452;  Beaupre 
V.  Telegraph  Co.,  21  Minn.  155;   Tnie  v.  Tel- 


1  Fed.  Cas.  No.  1,234. 


370 


DAMAGES   rX  A{   rU)XS  A(^,A1NST  TELEGRAPH  COMPANIES. 


egraph  Co.,  60  Me.  9;    Squire  v.  Tolegi-aph 
Co.,  98  Mass.  232;  Telegraph  Co.  v.  Wenger, 
55  Pa.   St.  2G2;    Tyler  v.  Telegraph  Co.,  60 
111.  421;  Telegraph  Co.  v,  Gildersleve,  29  Md. 
232;    Telegraph  Co.  v.  Kirkpatrick,  76  Tex. 
217,  13  S.  W.  70;    Cannon  v.  Telegraph  Co., 
109  N.  0.  300,  6  S.  E.  731;    Landsberger  v. 
Telegraph   Co.,    32   Barb.   530;     Mauville   v. 
Telegraph  Co.,  37  Iowa,  214;    Telegi-aph  Co. 
V.  EdsaU,  63  Tex.  6GS;   Ilibbard  v.  Telegraph 
Co.,   33  Wis.    558;    Thompson  v.   Telegraph 
Co.,  64  Wis.  53],  25  N.  W.  789;    Abcles  v. 
Telegraph  Co.,  37  Mo.  App.  554;    Telegraph 
Co.  V.  Conn\'eU,  2  Colo.  App.  491,  31  Pac. 
393;  3  Suth.  Dam.  298;  Wood,  Mayne,  Dam. 
40;    Thomp.  Elect.  §§  311-316,  inclusive;   Id. 
§§  340,  358-375,  inclusive.     Opposed  to  this 
array   of   authorities   are   the  following  de- 
cisions by  divided  coui-ts,  with  the  exception 
of  the  Georgia  and  Mississippi   cases:    Tel- 
egraph  Co.   V.    Hyer,   supra;    Daughteiy   v. 
Telegraph  Co.,  75  Ala.  IGS;   Id.,  89  Ala.  191, 
7  South.  600;  Telegi-aph  Co.  v.  Way,  83  Ala. 
542,  4  South.  844;   Telegraph  Co.  v.  Fatman, 
73  Ga.  285;    Alexander  v.  Telegraph  Co.,  66 
Miss.  161,  5  South.  397.     The  case  of  Tele- 
graph Co.  V.   Reynolds,  77  Va.  173,  is  also 
cited   as  sustaining  a  contrary  rulo.   but  a 
careful  reading  of  that  case  will  disclose  the 
fact  that  the  conclusions  reached  are  predi- 
cated  upon    a   statutory   provision   in   their 
Code.     In  the  case  at  bar,  the  message  that 
it  is  alleged  the  defendant  company  failed  to 
send  was  in  cipher,  and  contained  nothing 
that  would  indicate  to  the  defendant's  oper- 
ator whether  it  contained  a  criticism  upon 
the  "Horse  Fair"  painting  by  the  great  artist, 
Rosa   Bonheur,   named   in  the   message,   or 
whether  it  related  to  a  matter  of  dollars  and 
cents.    There  was  no  explanation  made  to  the 
operator  as  to  its   meaning  or  importxince, 
except  that  the  plaintiff  said  that  the  word 
"gladfulness,"  in  the  message,  had  a  special 
meaning.     What  that  special  meaning  was, 
he  did  not  disclose.     Under  these   circum- 
stances, all  that  the  plaintiff  could  rightfully 
recover  for  the  defendant's  failure  to  send  or 
deliver  the  message  would  be  nominal  dam- 
ages, or,  at  most,  the  sum  paid  by  him  as  the 
price    of    its    transmission.      It    was    eiTor, 
therefore,  for  the  court  to  admit  testimony 
as  to  the  damage  sustained  by  the  plaintiff 
by  the  loss  of  sale  of  a  cargo  of  timber  con- 
sequent upon  the  failure  to  forward  the  mes- 
sage. 

There  is  another  feature  presented  in  the 
proofs,  aside  from  all  that  has  been  said  up- 
on the  rule  of  damages  in  such  cases,  that 
would  prevent  the  recovery  had  in  this  case. 
The  plaintiiT  himself  testifies  that  he  re- 
ceived from  his  agent,  Dobell,  in  Europe,  an 
ofifer  for  the  cargo  of  timber.  What  that 
offer  was,  is  nowhere  stated  or  shown.  Then 
he  says:  "I  decided  to  make  a  final  propo- 
sition, which  I  did  by  taking  the  message  to 
the  telegraph  office,  that  was  not  sent,  which 
message,  when  translated,  was  an  offer  by 
me  of  said  cargo  of  timber  for  sale  at  54 
shillings  per  load."     Then  he  says  that  he 


missed  the  sale  of  the  cargo  at  the  terms 
offered  by  him  in  his  message  in  consequence 
of  the  defendant's  failure  to  send  it,  and  con- 
sequently had  to  sell  on  the  market  for  the 
best  price  he  coiild  get,  which  was  52  shil- 
lings per  load.  There  is  not  a  word  of  proof 
in  the  record  to  show  that  his  offer  contained 
in  the  misent  message  woifid  ever  have  been 
accepted,  or  that  he  could  ever  at  any  time 
have  sold  the  timber  at  the  price  at  which 
he  so  offered  it,  or  that  it  could  ever  have 
been  sold  at  any  greater  price  than  the  one 
he  actually  received  for  same,  whether  his 
message  had  been  sent  or  not.  Yet,  in  the 
face  of  this  state  of  the  proofs,  damages 
have  been  allowed  to  the  plaintiff  equal  to 
the  difference  betv\-eon  a  price  at  which  he 
simply  offered  his  timber  for  sale,  and  the 
price  actually  received  by  him  for  it,  with- 
out a  word  of  proof  to  show  Vv'hether  the 
higher  price  at  which  he  offered  it  for  sale 
could  ever  have  been  obtained  for  it  or 
not. 

The  appellee  contends  that  because  of  the 
decision  in  Telegraph  Co.  v.  Hyer,  supra, 
the  question  of  damages  cannot  be  consid- 
ered; that,  as  to  this  case,  it  is  stare  decisis. 
This  doctrine,  as  we  imderstand  it,  is  prop- 
erly applicable  to  decisions  fimiishing  rules 
of  property,  and  those  construing  statutes, 
and  to  those  passing  upon  the  validity  of 
contracts  in  which  investments  have  or  may 
have  been  made  upon  the  faith  of  the  adju- 
dication as  to  their  validity,  in  which  cases 
former  decisions  upon  the  same  questions 
will  be  adhered  to,  but  we  do  not  think  this 
case  falls  within  the  rale. 

In  reversing  the  former  ruling  of  the  court 
in  the  Hyer  Case,  we  do  not  interfere  with 
any  vested  right  acquired  upon  the  faith  of 
that  adjudication,  but  pass  upon  the  rule  of 
damages,  as  upon  an  abstract  proposition,  to 
folloAV  the  breach  of  such  contracts.  Of  the 
erroneousness  of  the  rule  as  laid  down  in 
that  case,  we  are  perfectly  and  clearly  sat- 
isfied; and  in  such  case,  in  determining  the 
propriety  of  overruling  it  as  a  solemn  adju-  . 
dicatiou,  we  are  to  be  governed  largely  by  a 
consideration  of  the  results  that  will  likely 
flow  from  the  enunciation  and  establishment 
of  the  one  or  the  other  of  the  two  rules.  If, 
in  such  case,  we  conclude  that  the  affirmance 
of  what  we  deem  to  be  the  erroneous  rule  in 
that  case  will  be  productive  of  more  far- 
reaching  and  harmful  results  than  would 
follow  the  disaffirmance  thereof,  then  it  be- 
comes oru-  duty  to  overturn  it,  and  such  we 
think  would  be  the  result  here.  Besides  be- 
ing unilateral  and  wholly  unfair,  as  we  have 
before  stated,  we  cannot  see  why,  if  the  pro- 
tection of  the  rule  in  Hadley  v.  Baxendale  is 
to  be  withheld  from  contracts  with  telegrapli 
companies,  it  should  not  also  be  denied  in 
the  daily  recurring  contractual  controversies 
between  individuals.  To  overtm-n  the  rule  in 
controversies  as  between  man  and  man, 
would  be  such  an  uprooting  of  the  old  land- 
marks as  to  make  it  impracticable  to  sur- 
mise the  harmful  results  that  would  follow. 


DAMAGES  IN  ACTIONS  ACAINST  TELEGRAPH  COMPANIES. 


371 


ISntcrtaining  tbese  views,  we  do  not  tliiuk 
that  the  docti'ine  of  stare  decisis  consti'ains 
us  to  adhere  to  the  rule  in  the  Hyer  Case, 
but  thin^  taat  less  harm  will  follow  our  re- 
turn to  the  well-beaten  and  famiUar  track 
that  furnishes  a  plain  and  easily  compre- 
hended rule  for  all  contracting  parties,  be 
they  corporate  or  individual. 

The  judgment  appealed  from  is  reversed, 
and  a  new  ti'ial  ordered. 

BANEY,  C.  J.,  (concurring.)  A  reconsid- 
eration of  the  question  of  the  measure  of 
damages  involved  here  confirms  the  correct- 
ness of  the  view  expressed  in  my  dissenting 
opinion  in  Telegraph  Co.  v.  Hyer,  22  Fla. 
649  et  seq.,  1  South.  129,  and  I  conciu*  in  the 
opinion  of  Judge  Taylor,  that  the  rule  fol- 
lowed in  the  case  mentioned  is  unfair,  and 
ought  not  to  be  perpetuated;  and,  without 
committing  myself  fm'ther  upon  the  question 
of  stare  decisis,  my  conclusion  is  that  more 
injury  will  result  in  the  future  from  adhering 
to  the  rule  of  the  Hyer  Case  than  will  accrue 
to  parties  to  past  ti-ansactions  from  changing 
it,  and  that  the  judgment  should  be  re- 
^•ersed.  Cooley,  Const.  Lim.  (5th  Ed.)  G.5, 
and  note  1;  Wells,  Stare  Dec.  §  624  et  seq.; 
Chamberlain,  Stare  Dec.  19. 

MABRY,  J.,  (dissenting.)  The  question  of 
liability  to  damage  for  a  failure  on  the  part 


of  a  telegraph  company  to  send  a  ciphor 
message  is  not  a  new  one  in  this  court. 
Over  six  years  ago  this  question  was  delib- 
erately settled  here  by  the  decision  in  the 
case  of  Telegi-aph  Co.  v.  Hyer,  22  Fla,  652,  1 
South.  129.  It  is  proposed  now  to  revei-se 
this  case,  and  my  view  is  that  it  sliould  not 
be  done.  Every  question  in  reference  to 
cipher  messages  entering  into  the  case  now 
before  us  was  fully  discussed  and  matm-oly 
considered  in  the  Hyer  Case,  and  this  case 
has  the  support  of  decisions  in  Alabama, 
Mississippi,  Georgia,  and  Virginia.  Under 
the  decision  in  the  Hyer  Case,  there  was  a 
remedy  for  damages  for  a  failure  on  the  part 
of  a  telegraph  company  to  send  a  cipher  mes- 
sage, when  it  had,  for  compensation,  agreed 
to  do  so.  There  is  much  merit  in  the  rule 
that,  whore  che  company  holds  itself  out  to 
the  public  as  a  transmitter  of  cipher  mes- 
sages for  pay,  it  should  not  be  allowed,  after 
receiving  the  money  and  agreeing  to  send  the 
message,  to  deny  its  liability  for  damages 
resulting  from  its  own  violation  of  duty  on 
the  gi'ouud  that  the  message  was  in  cipher, 
and  its  contents  not  known  to  the  company 
when  it  agreed  to  send  it.  This  court  hav- 
ing planted  itself  in  favor  of  this  rule  over 
six  years  ago.  I  do  not  think  we  should  now 
distm'b  it.  I  do  not  see  how  greater  barm 
will  result  from  adhering  to  the  decision  than 
overruling  it. 


372 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


FIRST  NAT.  BANK  OF  BAUXESVILLE  v. 
WESTERN  UNION  TEL.  CO. 

(30  Ohio  St.  555.) 

Supreme  Court  of  Ohio.      Dec.  Term,  1876. 

Error  to  district  court,  Belmout  couuty. 

J.  H.  Collins,  for  i)laintiff  in  error.  J.  W. 
Okey  and  O.  J.  Swaney,  for  defendant  in  er- 
ror. 

WRIGHT,  J.  The  First  National  Bank  of 
Barnesville  brought  an  action  in  the  court 
below,  against  the  telegraph  company,  to  re- 
cover damages  for  failure  to  transmit  and 
deliver  a  telegraphic  message.  The  bank 
was  located  in  Barnesville,  Ohio.  It  had 
done  business  with  one  Aaron  Lowshe,  and 
had  frequently  cashed  drafts  for  bim,  in  a 
small  way,  prior  to  February,  1SG9.  In  that 
month,  Lowshe  wanted  two  more  drafts 
cashed— one  on  Bellis  &.  Milbgan,  New  York, 
for  $1,(J(X);  one  on  Ege  &  Otis,  same  place, 
for  $1,400.  The  amounts  being  large,  and 
the  bank  cautious,  the  cashier  wrote  to  a 
correspondent  in  New  York,  George  F.  Baker, 
cashier  First  National  Bank,  New  York,  as 
follows:  '"Would  like  information  in  respect 
to  Mess.  Ege  &  Otis,  No.  168  W.  W.  Market; 
also.  Mess.  West,  Titus  &  Co.,  No.  129  West 
street.  Are  they  responsible  parties?  If  not 
too  much  trouble,  would  be  pleased  to  have 
you  in(iuire  of  each,  if  dft.,  at  sight,  drawn 
by  A.  Lowshe  for  $1,400  to  $1,600,  would 
be  paid.  If  the  firms  or  either  of  them,  are 
not  reliable  for  that  amt.,  or  if  they  should 
be  unwilling  to  accept,  please  answer  by 
telegram.  If  all  right,  need  not  dispatch. 
If  not  right,  would  like  to  hear  by  Saturday 
evening.    (13th)." 

This  letter  was  dated  at  Barnesville,  Feb- 
ruary 11th,  which  appears  to  have  been 
Thursday.  No  mention  is  made,  it  will  be 
observed,  of  Bellis  &  Milligan,  on  whom  the 
$1,600  draft  was  drawn. 

The  letter  was  received  in  New  York  by 
Baker,  to  whom  it  was  addressed,  on  Febru- 
ary 15tli.  It  is  stated  in  evidence  that  the 
ordinary  time  of  mail  comnumicatiou,  be- 
tween Barnesville  and  New  York,  is  two  days. 
This  advice  to  Baker  probably  reached  its 
destination  after  close  of  bank  hours,  on  Sat- 
urday, and  was  taken  up  in  the  ordinary 
course  of  business  on  Monday  morning.  On 
that  day  Baker  made  inquiries  of  Ege  &  Otis. 
<;:i  whom  the  $1,400  draft  was  drawn,  and  at 
4:.")5  of  that  day  telegraphed  as  follows,  to 
the  Bank  at  Barnesville:  "February  15,  1S()0. 
To  .J.  F.  Davis,  Cash.,  Barnesville,  O.  Parties 
will  accept  if  bill  lading  accompanies  the 
draft.    Parties  stand  fair.    Geo.  F.  Baker,  C." 

This  message  never  was  received  at  Barnes- 
ville. There  is  testimony  tending  to  show 
that  it  started  to  and  perhaps  reached  Buffa- 
lo. But  it  is  not  traced  beyond  that  point, 
and  the  telegraph  company  give  no  satisfac- 
torv  account  of  what  became  of  it.     The  one 


certain  fact  about  it  is,  that  the  Barnesville 
bank  never  received  it.  New  York  not  be- 
ing heard  from,  the  Barnesville  bank  cashed 
the  drafts,  on  Monday  the  loth,  before  three 
o'clock,  the  hour  at  which  business  closed. 
Lowshe,  the  drawer,  had  no  money  in  New 
York  at  all,  either  in  the  hands  of  Bellis  & 
^Milligan,  or  Ege  &  Otis,  and  having  accom- 
plished his  financial  transaction  at  Barnes- 
ville, left  the  same  day  for  Zanesville,  and 
from  thi'uce  to  other  places  more  remote. 
The  Barnesville  bank  now  claims  that  the 
$3,000  was  a  total  loss;  and  that  this  loss  is- 
chargeable  upon  the  telegraph  company,  in 
not  sending  and  delivering  the  dispatch.  They 
therefore  claim  to  recover  this  amount  in  this 
action. 

In  the  first  petition  of  the  bank,  it  is  stated 
that  the  drafts  were  discounted  between  two 
and  three  o'clock  on  the  15th,  which  would 
not  have  been  done  had  the  dispatch  been 
reasonably  delivered.  The  answer  of  defend- 
ant, however,  shoAved  that  the  dispatch  was 
not  delivered  in  New  York  until  4:55;  it  is 
therefore  entirely  obvious,  that  no  omission 
or  neglect  on  the  part  of  the  telegraph  com- 
pany could  have  prevented  the  cashing  of  the 
drafts. 

In  the  last  petition  of  the  bank,  it  is  said: 
"The  said  drafts  were  a  total  loss  to  said 
plaintiff,  no  part  thereof  having  been  paid, 
which  said  loss  would  have  been  prevented  if 
said  defendant  had  forwarded  and  delivered 
said  dispatch  to  said  plaintiff  within  a  reason- 
able time  after  it  was  received  by  said  de- 
fendant at  its  said  othce  in  New  York  city, 
as  aforesaid.  If  said  dispatch  had  been  deliv- 
ered to  said  plaintiff  before  said  drafts  were 
discounted,  the  same  Avould  not  have  been  dis- 
counted; and  if  it  had  been  delivered  to  said 
plaintiff'  within  a  reasonable  time  after  the 
same  was  discounted,  the  said  sum  of  $3,0()(» 
could  have  been  recovered  back  by  said  plain- 
tiff from  said  Lowslie." 

In  the  view  we  take  of  the  case,  the  sole 
(luestiou  that  need  be  decided  is  the  one  of 
damages.  As  has  been  said,  had  the  dispatch 
been  duly  sent  and  received,  it  could  not  have 
])re vented  the  bank  from  giving  LoAvshe  the 
money;  that  had  already  been  done.  Had  it 
been  delivered,  however,  within  any  reason- 
able time,  after  receipt  at  New  York,  then 
what  Avould  have  happened?  Plaintiffs  below 
say  they  could  have  recovered  back  the 
amount  from  Lowshe,  and  therefore  they  lost 
their  $3,000  by  the  negligence  of  the  defend- 
ant. The  petition  does  not  state  how  or  in 
what  manner  they  could  have  recovered  the 
money,  but  merely  asserts  the  fact  to  be  so. 
The  only  facts  in  evidence  shoAving  any  inten- 
tion to  take  steps  to  recover  the  money,  or  in- 
timating hoAv  it  was  to  be  done,  is  the  folloAv- 
ing  from  the  cashier,  Davis:  "Q.  Would  there 
have  been  any  trouble  in  the  bank  giving  se- 
curity in  Zanesville  in  any  proceeding  to  re- 
cover the  money?  (Objected  to.)  A.  I  think 
not.  Q.  State  whether,  if  this  message  had 
been  received  by  the  bank  during  the  after- 


DA.MAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMrANIES. 


373 


uoou  or  ovfiiiup:  of  February  16,  1869,  any 
means  would  have  been  used  to  recover  the 
"money;  if  so,  what?  A.  I  am  confident 
means  would  have  been  used  to  recover  if 

Mr.  Lowshe  also  makes  this  statement:  "Q. 
If  the  bank  had  discovered,  while  you  were 
at  Barnesville  or  Zanesville.  that  those  drafts 
which  you  had  cashed  at  the  Barnesville  bank 
would  not  be  accepted,  and  had  demanded 
the  money  back,  would  you  have  refunded  it 
to  the  bank?  A.  At  Zanesville.  on  the  after- 
noon of  the  first  day  there,  I  sent  five  hun- 
dred dollars  of  the  money  home.  Had  the 
bank  informed  me  at  Barnesville  the  drafts 
A^-ould  not  be  accepted,  I  would  have  return- 
ed the  money  to  the  bank.  Had  such  infor- 
mation reached  me  at  Zanesville,  before  I 
«ent  the  five  hundred  dollars  home,  I  would 
have  returned  it  all.  Had  such  information 
reached  me  at  Zanesville  after  I  sent  the  five 
hundred  dollars  home.  I  Avould  have  returned 
the  balance  to  the  bank.  I  would  have  re- 
turned the  money  immediately  on  receiving 
such  information." 

In  this  connection  the  court  charged  the 
Jury  in  effect,  that  if  defendants  were  guilty 
of  negligence  in  not  transmitting  the  message, 
then  plaintiffs  must  show  that  Lowshe  was 
where  they  could  have  reached  him  with  legal 
process  and  that  he  had  property  in  such  po- 
sition that  the  law  could  lay  hold  of  it;  and  if 
this  was  not  shown,  but  it  appeared  that  the 
recovery  of  the  money  depended  upon  the. 
happening  of  a  new  contingency  which  might 
or  might  not  have  occurred,  the  damages 
were  so  remote  that  no  recovery  could  be  had. 

L^pon  the  case  as  thus  made,  we  are  clearly 
of  opinion  that  the  plaintiff  was  not  entitled 
to  substantial  damages.  If  the  New  York 
dispatch  had  arrived  upon  the  15th  or  16th, 
it  is  not  made  apparent,  either  in  pleadings  or 
proof,  how  the  bank  was  to  secure  itself,  with 
that  certainty  the  law  requires,  in  order  to 
justify  a  claim  for  damages.  It  is  not  made 
to  appear  that  Lowshe  had  property  that 
could  be  seized.  He  had  obtained  this  money, 
it  is  true,  and  perhaps  might  have  had  it  in 
his  possession,  but  he  might  easily  have  put 
it  beyond  the  reach  of  process.  But  even  if 
he  had  the  money  where  he  could  lay  his  hand 
iipon  it,  it  is  not  pointed  out  how  the  bank 
proposed  to  reach  it.  Had  he  been  arrested 
on  the  ground  of  fraud,  it  might  have  been 
difficult  to  sustain  such  a  proceeding,  until  aft- 
er the  drafts  had  been  actually  protested  for 
nonacceptance,  by  which  time  Lowshe  was 
lost  sight  of.  Nor  is  it  alleged  or  proved  that 
an  actual  arrest  would  have  produced  the 
money.  It  is  true,  the  bank  claims  that  Mr. 
Lowshe  would  have  returned  the  money,  be- 
cause he  said  he  would;  still  the  jury  might 
have  considered  that  as  the  "mere  contin- 
gency.'" which,  the  court  instructed  them,  only 
occasioned  a  damage  that  was  remote. 

The  rule  as  to  damages  is  thus  laid  down 
by  Earl.  .T..  in  Leonard  v.  Telegraph  Co.,  41 
N.  Y.  .544:  "The  damages  must  flow  directly 
iind  naturally  from  the  breach  of  contract. 


and  they  must  be  certain  both  in  their  nature 
and  in  respect  to  the  cause  from  which  they 
proceed.  Lnder  this  rule,  speculative,  con- 
tingent, remote  damages  which  can  not  be 
directly  traced  to  the  breach  complained  of, 
are  excluded.  Under  the  former  rule,  such 
damages  are  only  allowed  as  may  fairly  be 
supposed  to  have  entered  into  the  contempla- 
tion of  the  parties,  when  they  made  the  con- 
tract, as  might  naturally  be  expected  to  fol- 
low its  violation.  It  is  not  required  that  the 
parties  must  have  contemplated  the  actual 
damages  which  are  to  be  allowed.  But  the 
damages  must  be  such  as  the  parties  may  be 
fairly  supposed  to  have  contemplated  when 
they  made  the  contract.  A  moi*e  precise 
statement  of  the  rule  is,  that  a  party  is  lia- 
ble for  all  the  direct  damages  which  both 
parties  would  have  contemplated  as  flowing 
from  its  breach,  if,  at  the  time  they  entered 
into  it,  they  had  bestowed  proper  attention 
upon  the  subject,  and  had  been  fully  inform- 
ed of  the  facts."'  See,  also,  Kiughorne  v. 
Telegraph  Co.,  18  U.  C.  Q.  B.  60,  and  Steven- 
son V.  Telegraph  Co.,  16  Id.  530;  Squire  v. 
Telegraph  Co..  98  Mass.  232. 

This  is  substantially  the  rule  as  laid  down 
in  Hadley  v.  Baxendale,  9  Exch.  341,  and  in 
considering  what  damages  may  be  supposed 
to  have  been  fairly  within  the  contemplation 
of  the  parties,  there  was  nothing  in  this  dis- 
patch to  inform  the  telegraph  company  of 
the  serious  consequences  that  are  now  pre- 
sented. There  was  absolutely  nothing  in 
the  language  of  the  message  advising  the 
company  that  it  was  to  prevent  the  cashing 
of  ?3.o6o  worth  of  drafts.  Hadley  v.  Bax- 
endale, and  numerous  authorities,  hold  that, 
before  a  party  can  be  charged  with  such 
special  and  peculiar  damages  as  are  here 
claimed,  he  must  have  had  notice  that  they 
were  likely  to  arise  from  a  breach  of  his 
contract. 

In  Parks  v.  Telegraph  Co.,  13  Cal.  422,  the 
message  was  to  attach  property.  This  was 
of  itself  notice  that  if  the  attiichment  was  not 
procured,  the  loss  of  the  debt  might  follow. 
Bryant  v.  Telegraph  Co.,  1  Daly,  575.  was, 
like  the  last,  a  case  where  an  attachment 
was  directed. 

In  Telegraph  Co.  v.  Wenger,  55  Pa.  St.  262; 
Allen.  Tel.  Cas.  3.56,  there  was  an  order  to 
buy  stocks,  which  was  delayed.  The  stocks 
rose  in  value,  and  the  telegraph  company 
were  held  responsible  for  the  difference. 
And  it  is  said  by  the  court  that  the  despatch 
was  such  as  to  disclose  the  nature  of  the " 
business   to   which    it  related,    and   the   loss 

I  might  be  very  likely  to  occur  if  there  was  de- 

I  lay  in  sending  the  message. 

j       ITpon  the  other  hand,  in  Baldwin  v.  Tele- 

i  graph  Co.,  54  Barb.  505,  1  Lans.  125,  45  N. 
Y.  744,  the  syllabus  is:  "If  a  telegram  does 
not  show  upon  its  face  that  it  relates  to  a 
business  transaction,  and  that  a  pecuniary 
loss  may  probably  be  sustained  if  a  mistake 
is  made  in  transmitting  it.  and  no  notice  to 
this    eft'ect    is    given    to    the    telegraph    com- 


374 


DAMAGES  IN  ACTIONS  AfJAlNST  TELEGRAPH  COMPANIES. 


Itiiuy,  the  company  makiug  such  mistake  will 
not  be  liable  in  damage  for  such  loss." 
lu  Landsbcrger  v.  Telegraph  Co.,  32  Barb. 

536,  it  was  held  that  plaintiff  could  not  re- 
cover damages,  because,  "on  receiving  the 
despatch  from  transmission,  the  defendant 
had  no  information  Avhatover  in  relation  to  it, 
or  the  purposes  to  be  accomplished  by  it,  ex- 
cept what  could  be  derived  from  the  dispatch 
itself." 

In  Telegraph  Co.  v.  Gildersleve,  29  Md.  232, 
Allen,  Tel.  Cas.  390,  it  is  held  that  knowledge 
of  special  circumstances  must  be  shown,  to 
lay  a  foundation  for  special  damages.  Ste- 
venson V.  Telegraph  Co.,  16  U.  C.  Q.  B.  530, 

537.  The  telegraph  cases,  generally,  follow 
the  rule  of  Hadley  v.  Baxeiidale,  with  re- 
gard to  notice,  as  is  shoAvn  by  the  numerous 
authorities  cited  by  counsel. 

It  therefore  appears  to  us  that  the  possi- 
bility of  recovering  the  money  from  Lowshe 
was  a  contingency  too  remote  upon  which 
to  base  a  recovery.  The  fact  that  the  com- 
pany were  not  advised  of  any  importance 
attaching  to  the  message,  either  by  the  mes- 
sage itself  or  actual  notice  given,  goes  further 
to  show  a  case  where  substantial  damages 
cannot  be  recovered. 

And  in  this  connection,  and  as  relating  to 
the  question  of  damages,  we  may  consider 
the  rule,  "causa  proxima  non  remota  spec- 
tatur,"  as  to  which  Parsons  says  (volume  2, 
p.  257,  "Telegraphs,  Measure  of  Damages"): 
"If  the  telegraph  company  is  in  default,  but 
their  default  is  made  mischievous  to  a  party 
only  by  the  operation  of  some  other  interven- 
ing cause,  then  the  rule  above  mentioned 
would  prevent  the  liability  of  the  company; 
because  their  default  would  only  be  the  re- 
mota, the  remote  or  removed  cause  of  the  in- 
jury, and  not  the  proxima.  or  nearest  cause." 

If  the  telegraph  company  were  guilty  of 
negligence  in  not  delivering  the  message  at 
Barnesville,  the  question  remains,  Avhether 
there  would  have  been  a  loss  if  there  were  no 
other  cause  intervening.  Clearly  the  failure 
in  the  message  was  not  the  moving  cause 
that  induced  Lowshe  to  obtain  the  discounts 
and  pocket  the  money;  neither  would  the 
delinquency  of  the  telegraph  company  have 
occasioned  any  damage  had  Lowshe  evi- 
denced that  integrity  which,  in  a  virtuous 
mind,  -would  have  induced  the  return  of  the 
money  to  the  bank.  The  loss  was  occasioned 
by  two  causes,— the  short-coming  of  the  tele- 
graph company,  in  not  delivering  the  mes- 
sage, and  the  still  shorter-coming  of  Ix)wshe, 


in  appropriating  to  himself  what  belonged  ta- 
somebody  else. 

In  Lowery  v.  Telegraph  Co.,  60  N.  Y.  198, 
B.  sent  a  telegram  to  plaintiff,  asking  for 
$.500;  by  mistake,  the  telegraph  company 
changed  the  message  to  $5,000,  which  B.  ob- 
tained, embezzled,  and  absconded.  The  ref- 
eree held  the  telegraph  company  liai^le  for  the 
loss  in  the  whole  amount.  This  Avas  held 
error;  that  defendant's  negligence  was  not 
the  proximate  cause  of  the  loss,  as  the  em- 
bezzlement of  B.  did  not  naturally  result 
therefrom,  and  could  not  reasonably  have 
been  expected. 

In  this  case,  the  court,  quoting  from  Crain 
v.  Petrie,  6  Hill,  522,  lay  down  this  rule: 
"To  maintain  an  action  for  special  damages, 
they  must  appear  to  be  the  legal  and  natural 
consequences  arising  from  the  tort,  and  not 
from  the  wrongful  act  of  a  third  person  in- 
duced thereby.  In  other  words,  the  dam- 
ages must  proceed  wholly  and  exclusively 
from  the  injury  complained  of." 

In  any  aspect,  therefore,  in  which  we  are- 
able  to  view  the  case,  we  cannot  but  con- 
sider that  the  damages  are  too  remote  to  up- 
hold recovery  to  any  substantial  amount. 

But  the  plaintiff  was  entitled  to  recover 
nominal  damages.  Upon  the  breach  of  an 
agreement,  the  law  infers  damages,  and,  if 
none  are  proved,  nominal  can  be  recovered. 
Sedg.  Meas.  Dam.  47;  Field,  Dam.  679;  Parks 
V.  Telegraph  Co.,  13  Cal.  425;  Oandee  v.  Tele- 
graph Co.,  34  Wis.  471. 

The  plaintiff  asked  the  court  to  charge  that, 
if  the  nondelivery  of  the  message  Avas  by 
reason  of  defendant's  negligence,  plaintiff' 
was  entitled  to  nominal  damages,  if  there 
were  no  actual  damage.  This  was  refused,- 
and  the  court  did  charge  that  there  was  no- 
right  of  action,  unless  injury  was  shown. 
This  was  error,  for  which  the  judgment  must 
be  reversed. 

The  state  of  the  pleadings  relieves  us  from 
consideration  of  those  points  in  the  case 
which  refer  to  the  special  contract  which 
forms  the  heading  to  the  message  itself. 
This  contract  was  set  up  as  a  defense  in  the 
answer  to  the  original  petition.  Subsequent- 
ly, however,  an  amended  petition  was  filed. 
To  this  an  answer  was  filed,  not  making  the 
original  answer  a  part  thereof,  and  not  set- 
ting up  the  special  contract  as  a  defense.  In 
this  state  of  the  pleadings,  we  look  to  the 
amended  petition  and  answer  alone.  Thus 
the  special  contract  is  eliminated  from  the 
case.     .Judgment  reversed. 


DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


87o 


CONNELL  V.  WESTERN  UNION  TEL.  CO. 

(22  S.  W.  345,  116  Mo.  34.) 

Supreme  Court  of  Missouri.  Division  No.  2. 
May  16,  1893. 

Error  to  circuit  court,  Pettis  couuty;  Rich- 
ard Field,  Judse. 

Action  by  Ma  the  w  Connell  against  the  West- 
em  Union  Telegraph  Company  for  failure  to 
promptly  deliver  a  telegram.  From  an  or- 
der of  dismissal  for  want  of  jurisdiction, 
plaintiff  appeals.     Affirmed. 

Wm.  S.  Shirk,  for  plalutilf  in  error.  Karnes, 
Holmes  &  Krauthoff,  Charles  E.  Yeater,  and 
G.  H.  Fearons.  for  defendant  in  error. 


GANTT,  P.  J.  This  is  an  action  for  dam- 
ages for  the  negligence  of  defendant  in 
failing  to  deUver  to  plaintiff  the  following 
telegraphic  message  sent  to  him  by  liis  wife: 
"Sedalia,  Mo.,  Dec.  13,  1&89.  To  Matt  Con- 
nell, Soldiers'  Home,  Leavenworth,  Kan- 
sas: Your  child  is  dying.  Mary."  The 
plaintiff  alleged  thait  his  wife  paid  tlie  cus- 
tomary charge,  50  cents,  for  its  transmis- 
sion, and  that  lie  had  refunded  that  sum  to 
her.  Plaintiff  then  alleges  that  his  child  died  on 
the  24th  day  of  December,  1889,  "and  that  it 
said  message  had  been  transmitted  and 
delivered  with  any  degree  of  diligence  or 
promptness  whatever,  he  would  have  been 
able  to  be  present  with  Ids  said  child  during 
its  last  sickness,  and  at  its  death,  and  that 
by  reason  of  the  great  negligence  and  care- 
lessness of  defendant  in  failing  to  deliver 
said  message,  and  of  his  being  thereby  de- 
piived  of  being  with  his  said  child  duiing 
Its  last  sickness,  and  at  its  death,  he  lost, 
not  only  the  fifty  cents  paid  for  sending  said 
message,  but  also  suffered  great  anguish  and 
pain  of  mind  and  body,  and  was  physically 
and  mentally  prostrated  when  he  learned  that 
his  child  had  died,  and  been  buried,  withooit 
knowledge  on  his  part  of  its  sickness  and 
death."  He  alleges  that  he  was  an  inmate 
of  the  soldiers'  home  from  December  13, 
1889,  continuously,  till  February  21,  1890, 
and  by  the  shghtest  diligence  he  could  have 
Ijeen  found.  He  alleges,  further,  that  he  is 
damaged  in  the  sum  of  $5,000,  for  which  he 
prays  judgment.  On  motion  of  defendant  the 
circuit  court  strack  out  of  the  petition  the 
words,  "but  also  suffered  great  anguish  and 
pain  of  mind  and  body,  and  was  physically 
and  mentally  prostrated,  wlien  he  learned, 
that  his  child  had  died,  and  had  been  buried, 
without  knowledge  on  his  part  of  its  sick- 
ness and  death."  l^is  left  the  action  pend- 
ing for  the  50  cents  only,  and,  plaintiff  declin- 
ing to  amend,  the  court  sustained  another 
motion  to  dismiss  for  want  of  jurisdiction 
of  the  subject-matter  of  the  action. 

The  sole  question  discussed  by  the  appel- 
lant in  this  case  is  this:  "Where  a  telegi-apla 
company  is  advised  by  the  contents  of  a 
message  that  great  mental  suffei-ing  and  pain 
wiU  naturally  result  from  its  neglect  toti-ans- 
init  aul  deliver  the  message  promptly,  can 


damages  be  recovered  by  the  sendee  for  such 
mental  agony  and  distress,  caused  by  a  fail- 
ure to  promptly  transmit  and  deliver?"  The 
proposition,  it  will  be  observed,  relates  sim- 
ply to  damages  arising  from  a  breach  of 
contract.  Prior  to  this  time  there  had  been 
but  one  opinion  expressed  in  the  decisions  of 
this  court,  and  that  is  clearly  advei-se  to  the 
contention  of  the  appellant,  and  this  is  not 
questioned  by  the  able  counsel  who  repre- 
sents the  appellant;  but  he  urges  that,  in- 
asmuch as  telegraphy  is  of  comparatively  re- 
cent origin,  we  skould,  in  view  of  the  func- 
tion it  performs,  make  an  exception  in  the 
construction  of  the  contracts  made  by  those 
engaged  in  it,  and  the  damages  which  flow 
from  a  breach  thereof.  That  an  action  for 
mental  angiiish,  disconnected  with  physical 
injury,  for  the  breach  of  a  contract,  could 
not  be  maintained  at  common  law,  with  the 
single  exception  of  the  breach  of  a  marriage 
contract,  we  think,  is  abundantly  established. 
Wood,  Mayne,  Dam.  T.j;  Lynch  v.  Knight,  9 
H.  L.  Cas.  577;  Walsh  v.  RaUroad  Co.,  42 
Wis.  23;  Wyman  v.  Leavitt,  71  Me.  227. 
The  subject  came  under  view  in  this  court 
in  Trigg  v.  Railvv'ay  Go.,  74  Mo.  147.  In 
that  case  a  lady,  with  two  little  children,  was 
carried  beyond  the  station  to  which  she  was 
traveling.  It  was  not  claimed  that  any  in- 
dignity was  offered,  or  that  she  suffered  per- 
sonal injury.  The  trial  court  instructed  that 
the  jury  might  award  her  damages  for  the 
anxiety  and  suspense  of  mind  suffered  in  con- 
sequence of  the  delay  in  reaching  her  desti- 
nation. This  court,  in  reversing  the  cause, 
said:  "The  instruction  as  to  the  measiu'e  of 
damages  was  erroneous.  Neither  the  anxi- 
ety and  suspense  of  mind  suffered  by  the 
plaintiff  in  consequence  of  the  delay,  nor  the 
effect  upon  her  health,  nor  the  danger  to 
■uliich  she  was  exposed  in  consequence  of 
the  train  being  stopped  an  insufficient  length 
of  time,  were  proper  elements  of  damage  in 
this  case,  as  no  personal  injuiy  was  received 
by  the  plaintiff,  and  no  circumstances  of  ag- 
gravation attended  the  wrongful  act  com- 
plained of.  If  the  anxiety  and  suspense  of 
mind  suffered  by  tiie  plaintiff  in  consequence 
of  the  delay  in  this  case  is  a  gvoimd  of  recov- 
ery, similar  suspense  and  anxiety  of  mind 
would  bo  an  equally  good  gi-oimd  of  recov- 
ery in  a  case  where  a  railroad  train  should 
wrongfully  stop  to  take  on  a  passenger." 
The  general  rule  is  that  "pain  of  mind,  when 
connected  with  bodily  injury,  is  the  subject 
of  damages;  but  it  must  be  so  connected 
in  order  to  be  included  in  the  estimate,  unless 
the  injury  is  accompanied  by  circumstances 
of  malice,  insult,  or  inhumanity;"  citing 
Pierce,  R.  R.  (1881)  302;  Railway  Co.  v. 
Birney,  71  111.  391.  The  authority  of  this 
case  has  never  been  questioned,  by  the  courts 
of  this  state,  to  our  knowle.lge.  The  rule 
announced  is  in  sti'ict  harmony  with  that  of 
the  courts  of  last  resort  in  our  sister  states, 
until,  in  1881,  the  supreme  court  of  Texas, 
in  So  Relle  v.  Telegraph  Co.,  55  Tex.  308,  an- 
nounced the  doctrine  that  the  sender  of  a  so- 


376 


DAMAGES  IN  ACTIONS  AGAINST  TELE(JRAPH  COMl'ANIES. 


cial  telegram  could  recover  for  the  mental  an- 
.^uifeli  caused  b\  delay  in  its  deliveiy.  The 
authorities  relied  upon  by  the  supreme  court  of 
Texas  in  that  case  were  actions  for  physical 
injuries,  in  which  the  mental  agony  formed 
an  inseparable  part, — a  doctrine  never  ques- 
tioned in  this  state  since  Porter  v.  Railroad 
Co.,  71  Mo.  GG.  The  learned  commissioner 
who  prepared  the  opinion  did  quote  a  sug- 
gestion of  the  authors  of  Shearman  &  Red- 
field  on  Negligence,  to  the  effect  that  they 
thought  sucli  an  action  ought  to  he,  but  they 
did  not  claim  that  any  court  in  this  country 
or  England  had  pi'eviously  sustained  their 
view.  The  Texas  case  has  been  followed  in 
that  state  In  a  groat  number  of  cases,  and 
has  been  adopted  in  Indiana,  North  Carolina, 
Kentucky,  Alabama,  and  Tennessee.  On  the 
other  hand,  this  new  departure  has  been  vig- 
orously assailed  and  denied  by  the  supreme 
courts  of  jNIississIppi,  Georgia,  Kansas,  and 
in  Dakota,  and  in  a  most  luminous  dissenting 
opinion  by  Judge  Lurton,  of  the  supreme 
court  of  Tennessee,  now  judge  of  the  United 
States  circuit  court  for  the  sixth  circuit,  in 
which  Folkes,  J.,  concuiTed.  The  majority 
of  the  supreme  court  of  Tennessee  do  not 
go  to  the  length  contended  for  by  the  appel- 
lant here.  The  majority  lay  great  stress 
upon  the  fact  that  by  virtue  of  a  statute 
in  Tennessee  a  cause  of  action  is  given  to 
the  aggrieved  party  for  damages  for  failure 
10  deliver  any  message.  Hence  they  argue 
that,  as  the  party  has  the  right  to  some 
tlamages  by  virtue  of  the  statute,  they  con- 
clude they  may  add  the  anguish  of  mind  as 
an  element.  It  is  impossible  to  escape  the 
feeling  that  the  veiy  able  judges  wei'e  re- 
sorting to  a  fiction  to  justify  them  in  sup- 
porting the  action.  The  case  of  So  Relle 
v.  Telegraph  Co.,  55  Tex.  310,  has  been  no- 
where more  llatly  repudiated  than  by  the 
supreme  court  of  Texas  itself,  in  Railway  Oo. 
V.  Levy,  59  Tex.  5G.3.  Judge  Staytou,  in  an 
able  and  lucid  discussion  of  the  authorities, 
demonstrates  "that  the  cases  in  which 
damages  have  been  allawed  for  mental  dis- 
tress *  *  *  was  the  incident  to  a  bodily 
injury  suffered  by  the  distressed  person,  or 
cases  of  injury  to  reputation  or  property,  in 
which  pecuniaiy  damage  was  shown,  or  the 
net  such  that  the  law  presumes  some  dam- 
age, however  slight,  from  the  act  complained 
of.  They  are  not  oases  in  which  the  bodily 
injury  or  other  wrong  was  suffered  by  one  per- 
son, and  the  mental  distress  by  another."  The 
reasoning  of  the  supreme  tiourt  of  Tennessee 
—that,  because  the  Code  gave  an  action  for 
some  damages,  that  opened  the  way  to  add 
damages  for  mental  distress— is,  we  think,  at 
complete  vanance  with  our  own  decisions. 
In  this  state  wo  have  a  damage  act  which 
gives  a  right  of  action  where  death  has  re- 
sulted, and  similar  statutes  exist  in  most  of 
the  states.  The  constniotion  placed  upon 
these  statutes  has  been  that  no  relative, 
save  those  named  in  the  statute,  can 
i"ecover  at  all,  and  no  recovery  as  a 
solatium    for    mental    suffering    is    allowed, 


where  not  expressly  given  by  the  statute. 
Field,  Dam.  498;  Poi-ter  v.  Railroad  Co.,  71 
Mo.  GG;  Parsons  v.  Railroad  Co.,  91  Mo. 
286,  6  S.  W.  Rep.  464;  Sehaub  v.  Railroad 
Co.,  106  JIo.  74,  16  S.  W.  Rep.  924. 

Buit  it  is  said  damages  for  injury  to  the 
feelings  have  always  been  allowed  in  actions 
founded  upon  a  breach  of  promise  to  marry, 
and  this  is  true  in  this  as  in  other  states.  Wil- 
bur V.  Johnson,  58  Mo.  GOO;  Bird  v.  Thojnp- 
son,  96  Mo.  424,  9  S.  W.  Rep.  788.  But  it 
has  always  been  regarded  as  an  exception  to 
the  rule.  In  this  action,  plaintiff's  pecuniary 
loss  forms  an  important  element.  The  ac- 
tion is  of  common-Law  origin,  and  at  common 
law  the  husband,  on  marriage,  became  liable 
for  the  wife's  debts,  and  for  support  in  a 
manner  and  style  commensurate  with  his 
own  social  standing,  and  €\-idence  of  his  sta- 
tion in  life  and  financial  condition  has  always 
been  admitted.  Wilbur  v.  Johnson,  supra. 
As  was  well  said  by  Cooper,  J.,  in  Telegraph 
Co.  V.  Rogers,  68  Miss.  748,  9  South.  Rep. 
823:  "This  action,  tliongh  in  form  one  for 
the  breach  of  contract,  partakes  in  sev- 
eral features  of  the  characteristics  of  an 
action  for  the  willful  tort;  and,  though  the 
damages  recoverable  for  the  plaintiff  for 
mental  suffering  are  spoken  of  as  'compen- 
satory,' the  fervent  language  of  the  courts 
indicates  how  shadowy  is  the  line  that  sep- 
arates them  from  those  strictly  pecuniary." 
Harrison  v.  Swift,  13  Allen,  144;  Kurtz  v. 
Frank,  7G  Ind.  595;  Thorn  v.  Knapp,  42  N. 
Y.  475;  Coryell  v.  Colbaugh,  1  N.  J.  Law, 
77.  "Especially  those  cases  in  which  evi- 
dence of  seduction  is  admitted  to  ascertain 
the  damages.  So  much,  indeed,  does  the 
motive  of  the  defendant  enter  into  the  ques- 
tion of  damages,  that  in  Johnson  v.  Jenkins, 
24  N.  Y.  252,  the  defendant  was  permitted 
to  give  in  evidence,  in  mitigation  of  dam- 
ages, the  fact  that  he  refused  to  consummate 
the  marriage  because  of  the  settled  opposi- 
tion of  his  mother,  who  was  in  infirm 
health." 

These  considerations  sufficiently  indicate 
the  reasons  that  actuated  the  courts  to 
make  tliis  exception.  Few  precedents  for 
this  action  will  be  foimd  where  the  defend- 
ant was  impecunious.  The  learned  counsel 
has  collected  various  other  cases  in  which 
mental  anguish  was  recognized  as  an  ele- 
ment of  damage,  and  concludes  with  the 
query,  "If  allowed  in  these,  why  not  in  this 
action?"  Let  us  consider  these  in  the  order 
of  his  brief:  Assault  and  battery.  Under 
this  head  is  cited  the  case  of  Craker  v. 
Railway  Co.,  36  Wis.  G57.  In  that  case  the 
conductor  of  a  train  seized  upon  the  mo- 
ment, when  the  other  employes  were  absent 
from  the  car  to  take  improper  liberties  with 
a  lady  passenger.  The  evidence  showing  that 
he  placed  his  arm  around  her,  and,  againsv 
her  vehement  protests,  kissed  her.  It  was 
a  clear  physical  violation  of  her  person, 
which  the  coiu-ts  have  ever  held  constitutefl 
an  assault  and  battery,  and  actionable.  The 
law    redresses    sucli    a   wrong   in   its   initial 


DAMA(;i:S   L\  ACTIONS  AGAINST  TELPX4RAPH  COMPANIES. 


377 


stages.  Tlie  protection  of  tlio  person  has 
ever  been  an  object  of  great  solicitude  to 
the  common  law.  The  present  abiUty  of 
actual  violence  often  justifies  recom'se  to 
extreme  measures  in  preventing  a  consum- 
mation of  threatened  wrong  to  the  person. 
The  cases  cited  under  this  head  clearly  add  no 
weight  to  plaintiff's  claim.  The  cases  of  ma- 
licious prosecution  and  false  imprisonment 
>come  under  that  general  class  of  willful 
wrong  to  the  person,  affecting  the  liberty, 
character,  reputation,  personal  security,  and 
domestic  relations.  Judge  Lumpkin,  in  Chap- 
man V.  Telegraph  Co.,  (Ga.)  15  S.  E.  Rep.  901, 
disposes  of  the  ai'gument  attempted  to  be 
-drawn  from  this  class  as  follows:  "In  an  ac- 
tion for  wrongful  attachment,  on  the  ground 
that  the  defendant  was  about  te  dispose  of  his 
property  with  intent  to  deprive  his  creditors, 
it  was  held  (by  a  divided  court)  that  the  mor- 
tification was  a  part  of  the  actual  damages. 
Byrne  v.  Gardner,  33  La.  Ann.  6.  Of  course 
it  was  a  case  of  serious  injury  to  the  plain- 
tiff's business  standing,  and  therefore,  even  if 
sound,  is  no  authority  on  the  present  question. 
In  an  action  for  false  Imprisonment,  or  for 
malicious  arrest  and  prosecution,  mental  an- 
guish has  been  held  a  proper  subject  for 
compensatory  damages.  Fisher  v.  Hamil- 
ton, 49  Ind.  341;  Stewart  v.  Maddox,  63 
Ind.  51;  Coleman  v.  Allen,  79  Ga.  G37,  5 
S.  E.  Rep.  204.  Of  course,  such  injuries  are 
essentially  willful,  and,  besides,  are  viola- 
tions of  the  great  right  of  personal  security 
or  personal  liberty."  As  to  the  action  of 
seduction,  every  lawyer  knows  that  proof 
of  some  service  by  the  daughter  has  been 
invariably  required  to  sustain  it;  and  the 
same  rule  is  rigidly  adhered  to  in  Magee  v. 
Holland,  27  N.  J.  Law,  8G,  to  which  we  are 
cited  by  coimsel,  for  the  forcible  abduction 
of  a  daughter.  In  the  case  of  enticing  away 
a  daughter,  we  are  referred  to  Stowe  v. 
Hey  wood,  7  Allen,  118.  The  court  permitted 
damages  for  mental  suffering  on  the  express 
ground  that  it  was  a  willful  injury,  and 
decUned  to  say  whether  such  damages  could 
ever  be  recovered  for  negligence  alone,  as 
In  the  case  at  bar.  This  case  illusti-ates  the 
greatest  difficulty  in  estimating  damages 
for  mental  suffering.  Judge  Metcalf  says: 
"Mental  suffering  cannot  be  measured  aright 
by  outward  manifestations,  for  there  may 
be  a  show  of  great  distress  where  httle  or 
none  is  felt  And  great  distress  may  be 
"concealed,  and  borne  in  silence,  with  an 
apparently  quiet  mind.  Ab  inquieto  saepe 
simulatur  quies."  "And  we  nowhere  find 
that  any  other  evidence  of  mental  suffer- 
ing, besides  that  of  the  injuiy  which  was 
the  alleged  cause  of  action,  was  ever  be- 
fore admitted."  The  court  reversed  the 
case  because  the  trial  court  permitted  evi- 
dence "tending  to  show"  plaintiff  suffered 
from  "pain  and  anxiety  of  mind."  It  is 
hardly  necessary  to  add  that  in  a  case  of 
libel  or  slandex-,  if  the  Avords  are  not  ac- 
tionable per  se,  special  damages  must  be  al- 


leged and  proved.  When  they  are  action- 
able per  se,  they  are  construed  •  because 
of  their  evident  tendency  to  degrade  the 
citizen  in  the  estimation  of  his  neighbors, 
and  in  both  cases  they  are  malicious.  We 
have  now  gone  through  the  hst,  and  we 
find  in  none  of  them  any  reason  for  adopt- 
ing the  rule  that,  for  the  mere  negligent 
failure  to  comply  with  a  contract,  damages 
may  be  recovered  on  the  sole  groimd  of  in- 
jured feelings,  when  the  plaintiff  has  suf- 
fered no  physical  injury.  The  law,  up  to 
tins  time,  has  essayed  to  protect  the  per- 
son and  property  of  the  individual.  All  the 
cases  cited  are  based  upon  this  principle. 
Reputation  is  included  in  the  person.  Jo'.ni- 
son  V.  Bradstreet  Co.,  87  Ga.  79,  13  S.  E. 
Rep.  250. 

The  damages  claimed  in  this  action  can- 
not be  allowed  as  exemplary  damages.  The 
Texas  court,  in  one  case,  did  so  hold,  but 
afterwards  repudiated  it.  Stuart  v.  Tele- 
graph Co.,  66  Tex.  580,  18  S.  W.  Rep.  351. 
But  we  do  not  think  that  the  courts  of  Eng- 
land and  of  this  country,  prior  to  ISSl,  were 
rejecting  actions  like  this  on  a  mere  arbi- 
trary assimiptlon,  unsustained  by  reason. 
A  doctrine  which  has  passed  so  long  im- 
challenged  by  the  great  jurists  who  have 
adorned  the  bench  of  our  state  and  federal 
courts  is  not  to  be  lightly  discarded  at  the 
behest  of  ingenious  and  able  counsel.  The 
law  is,  and  ought  to  be,  more  stable  than 
this.  It  has  long  been  the  boast  of  com- 
mon-law writers  that  the  common  law  was 
a  system  founded  upon  reason;  and  one  of 
its  maxims  has  ever  been  tliat,  when  the 
reason  upon  which  a  law  was  based  ceased, 
the  law  itself  ceased.  Speaking  for  our- 
selves, we  are  satisfied  that  the  common 
law,  denying  an  action  for  mental  distress 
alone,  was  founded  upon  the  best  of  reason, 
and  an  enlightened  public  policy.  And  wo 
question  if  the  real  reasons  were  ever  more 
clearly  and  satisfactorily  stated  than  by 
Judge  Lurton,  which  opinion  we  adopt:  "The 
reason  why  an  independent  action  for  such 
darqages  caimot  and  ought  not  to  be  sustained 
is  found  in  the  remoteness  of  such  dam- 
ages, and  in  the  metaphysical  character  of 
such  an  injury,  considered  apart  from  phys- 
ical pain.  Such  injuries  are  generally  more 
sentimental  than  substantial.  Depending 
largely  upon  physical  and  nervous  condition, 
the  suffering  of  one  imder  precisely  the 
same  circumstances  would  be  no  test  of  the 
suffering  of  another.  Vague  and  shadowy, 
there  is  no  possible  standard  by  which  such 
an  injury  can  be  justly  compensated,  or  even 
appi'oximately  measured.  Easily  simulated, 
and  impossible  to  disprove,  it  falls  within 
all  the  objections  to  speculative  damages, 
which  are  universally  excluded  because  of 
their  uncertain  character.  That  damages  so 
imaginary,  so  metaphysical,  so  sentimental 
shall  be  ascertained  and  assessed  by  a  jury 
with  justness,  not  by  way  of  i^unishment  to 
the  defendant,  but  as  mere  compensation  to 


378 


DAMAGES   IN  ACTlUlN.S  ACAINST  'iELE<JUAPII  CUMPAXIES. 


plaintiff,  is  not  to  be  expected.  That  tlie 
grief  natural  to  the  death  of  a  loved  relative 
shall  be  separated  from  the  added  grief 
and  anguish  resulting  from  delayed  informa- 
tion of  such  mortal  illness  or  death,  and 
compensi'.lion  given  for  the  latter  only,  is 
the  task  imposed  by  the  law,  as  determined 
by  the  majority  of  the  supreme  court  of 
Tennessee."  "It  is  legitimate  to  consider 
the  evils  to  which  such  a  precedent  logically 
leads.  Upon  what  soimd  legal  considera- 
tions can  this  court  refuse  to  award  dam- 
ages for  injury  to  the  feeUngs,  mental  dis- 
iross,  and  humiliation,  when  such  injury  re- 
sults from  the  breach  of  any  contract?  Take 
the  case  of  a  debtor  who  agrees  to  return 
the  money  borrowed  on  a  certain  day,  who 
breaches  his  agreement  willfully,  with 
knowledge  that  such  breach  on  his  part 
will  probably  result  in  the  financial  ruin 
and  dishonor  of  his  disappointed  creditor. 
Why  shall  not  such  a  debtor,  in  addition  to 
the  debt  and  the  interest,  also  compensate  his 
creditor  for  this  ruin,  or  at  least  for  his 
mental  sufferings?  Upon  what  principle 
can  we  longer  refuse  to  entertain  an  action 
for  injured  feelings  consequent  upon  the 
use  of  abusive  and  defamatory  language, 
not  charging  a  crime,  or  resulting  in  special 
l)ecuniary  damages?  Mental  distress  is,  or 
may  be  in  some  cases,  as  real  as  bodily 
pain,  and  it  as  certainly  results  from  lan- 
guage not  amounting  to  an  imputation  of 
crime;  yet  such  actions  have  always  been 
dismissed  as  not  authorized  by  the  law  as 
it  has  come  down  to  us,  and  as  it  has  been 
for  all  time  administered." 

Why,  if  this  i-ule  is  to  become  the  law  of 
this  state  in  regard  to  this  contract,  shall  it 
not  apply  to  all  disappointments  and  mental 
sufferings  caused  by  delays  in  railroad 
trains?  Telegraph  companies  are  common 
carriers;  so  are  railroad  companies;  and  yet 
this  court,  in  the  Trigg  Case,  held  the  com- 
pany not  liable  for  mental  anguish,  as  an 
independent  cause  of  action  for  a  mere  act 
of  negligence.  A  similar  conclusion  was  also 
reached  in  the  United  States  circuit  court 
for  the  fourth  circuit  in  Wilcox  v.  Railroad 
Co.,  52  Fed.  Rep.  2G4,  3  C.  C.  A.  73,  where 
the  plaintiff  made  a  special  contract  for  a 
train  to  take  him  to  the  bedside  of  a  sick 
parent.  The  court  held  that  the  trouble  of 
mind  caused  by  the  delay  at  a  railroad 
station  could  not  be  made  the  basis  of  an 
action,  saying:  "But  we  know  of  no  decided 
case  which  holds  that  mental  pain  alone, 
unattended  by  injury  to  the  person,  caused 
by  simple  negligence,  can  sustain  an  action." 
"The  plaintiff  was  the  subject  of  two  mental 
pains,— one,  for  the  condition  of  the  sick 
person;  the  other,  from  the  delay  at  the  sta- 
tion,—the  latter,  only,  being  the  subject  of 
this  action."  "It  cannot  be  pretended  that 
damages  from  the  latter  cause  of  'anxie- 
ty' and  'suspense'— uncertain,  indefinite,  im- 
definable,  unascertainable,  dependent  so 
largely  on  the  peculiar  temperament  of  the 
person  suffering  the  delay— was  in  the  con- 


templation of  the  defendant  when  it  entered 
into  the  contract."    Griffin  v..  Colver,  Hi  N. 
Y.  4S9;  Telegraph  Co.  v.  Hall,  12  i  U.  S.  444, 
t    Sup.   Ct.    Rep.   577.    But,   as   before   said. 
If  we  establish  the  rule  as  to  one  common 
cari'ier  or  private  person,  with  what  sort  of 
consistency   can   we  refuse  to  extend  it  to 
all?     The    courts    of    Texas    have    already 
spoken  of  a  similar  case  as  "intolerable  litiga- 
tion."   We   see   no    reason    for   making  this 
innovation  or  exception.     The  legislature  has 
imposed    a    penalty    for    each    infraction    of 
its  duty  in  delaying  a  message,  and  it  seems 
veiy  clear  to  us  that,  if  it  is  to  become  the 
policy  of  the  state  to  adopt  this  new  rule, 
the  legislature,  and  not  tins  court,  should  do 
it.    The  common  law  has  always  attempted 
to  deal  with  the  citizen,  and  his  rights  and 
wrongs,  in  a  practical  way,  and  tlie  declared 
object  of  awarding  damages  is  to  give  com- 
pensation for  pecuniary  less.    The  right,  in  a 
civil   action,    to   inflict   punishment   by    way 
of  punitory  damages,  has  been  ably  contro- 
verted.     The    allowance     of     damages    for 
wounded  feelings,   when   they   are  the  con- 
comitant or  result  of  a  physical   injury,   is 
placed    rightfully    on    the    ground    that    the 
mind  is  as  much  a  part  of  the  body  as  the 
bones   and   muscles,   and   an   injury    to   the 
body  included  the  wliole,  and  its  effects  were 
not  separable;  but  the  experience  of  eveiy 
judge  and  lawyer  teaches  him  how  unsatis- 
factory, in  these  personal  injury  cases,   are 
the  verdicts  of  juries.    They  are  utterly  in- 
consistent,  and   the  courts  do   not  attempt 
to    justify  these    inconsistencies    upon    any 
other  theory  than  that  it  is  tlie  sole  province 
of  the  jury  to  fix  the  amount.     The  result 
is  that,  in  nearly  every  appeal  that  reaches 
this   court,   one  ground   for   reversal   is   the 
excessive    damage    awarded;  and    the  right 
of  this  court  to  interfere  at  all  on  this  ground 
is  seriously  challenged.     It  is  no  uncommon 
thing  to  have  the  appellee  voluntarily  enter 
a   remittitur  to  save  his   verdict   from   the 
charge  of  passion  or  prejudice.    Under  these 
oircxmistances,  is  it  wise  to  venture  upon  the 
far  more  speculative  field  of  mental  anguish, 
without   guide  and    without    compass?     We 
think  not.    We  have  examined  the  cases  in 
the  courts  of  Kentucky,  Indiana,  Tennessee, 
Alabama,  and  North  Carolina.    They  are  all 
based  upon  the  So  Relle  Case,  in  55  Tex. 
308,    vx'liich,    we   have   shown,    stands    upon 
no  previous  adjudication,  but  is  opposed  by 
the   Levy   Case,   in  59   Tex.,   which,   to  our 
minds,    completely    refutes    it.     The    cases 
holding  this  view   are   Stuart   v.   Telegraph 
Co.,  6G  Tex.  580,  18  S.  W.  Rep.  351;  Rail- 
road Co.  V.  Wilson,  69  Tex.  739,  7  S.  W.  Rep. 
653;  Telegraph  Co.  v.  Cooper,  71  Tex.  507,  & 
S.  W.  Rep.  598;    Same  v.  Broesche,  72  Tex. 
654,  10  S.   W.  Rep.  734;  Same  v.  Simpson, 
73  Tex.   423,    11   S.   W.    Rep.   385;   Same  v. 
Adams,    75   Tex.    531,    12    S.    W.    Rep.    857 j 
Wadsworth  v.  Telegraph  Co.,  86  Tenn.  695, 
8  S.  W.  Rep.  574;    Reese  v.  Same,  123  Ind. 
294,  24  N.  E.  Rep.  163;    Beasley  v.  Same,  3!> 
Fed.  Rep.  181;  Telegraph  Co.  v.  Henderson, 


da:.iages  in  actions  against  telegkaph  companies. 


37^J 


89  Ala.  510,  7  South.  Eep.  419;  Thompson  v. 
Tele?ri-aph  Co.,  106  N.  C.  549,  11  S.  E.  Rep. 
269;  Chapman  v.  Same,  (Ky.)  13  S.  W.  Rep. 
880;  Young  v.  Same,  107  N.  C.  370,  11  S.  E. 
Rep.  1044;  Thomp.  Elect,  §  378,  and  cases 
cited.  The  cases  opposing  this  view  are,  no- 
tably, the  dissenting  opinion  of  Judge  Lurton 
in  Wadsworth  v.  Telegraph  Co.,  S6  Tenn. 
095,  8  S.  W.  Rep.  574;  Chapman  y.  Telegi-aph 
Co.,  (Ga.)  15  S.  E.  Rep.  901,  in  which  Judge 
Lumpkin,  of  the  supreme  court  of  Georgia, 
reviews  all  the  cases  in  a  most  admirable 
tone,  and  with  great  clearness;  Wilcox  v. 
Railroad  Co.,  (4th  circuit,)  52  Fed.  Rep.  204, 
3  C.  C.  A.  73;  Crawson  v.  Telegraph  Co.,  47 
Fed.  Rep.  544;  Chase  v.  Same,  44  Fed.  Rep. 
554,  where  all  the  authorities  are  cited;  West 
V.  Same,  39  Kan.  93,  17  Pac.  Rep.  807;  Russell 
V.  Same,  3  Dak.  315,  19  N.  W.  Rep.  408;  Tele- 
graph Co.  V.  Rogers,  68  Miss.  748,  9  South. 
Rep.  823;  Lynch  v.  Knight,  9  H.  L.  577;  Com- 
missioners V.  CouJtas,  L.  R.  13  App.  Cas.  222; 
Tyler  v.   Telegraph  Co.,  54  Fed.   Rep.  634; 


Kester   v.   Telegraph   Co.,    (Taft,   Judge,)    55 
Fed.  Rep.  003. 

We  are  fully  aware  that  the  plaintiff's 
claim  appeals  strongly  to  the  sensibilities; 
but  to  adopt  that  view  we  must  either  be 
guilty  of  adopting  one  rule  of  damages  for 
one  class  of  common  carriers,  and  the  breach 
of  their  contracts,  or  we  must  conclude  that 
all  of  our  predecessors  in  the  great  common- 
law  courts  were  at  fault,  and  heucefortli 
repudiate,  not  only  their  utterances,  but  our 
own,  on  this  subject,  and  this  we  have  no 
inchnation  to  do.  We  prefer  to  travel  yet 
awhile  super  antiquas  vias.  If,  in  the  evolu- 
tion of  society  and  the  law,  this  innovation 
should  be  deemed  necessary,  the  legislatiu-e 
can  be  safely  trusted  to  introduce  it,  with 
those  limitations  and  safeguards  which  Aviil 
be  absolutely  necessary,  judging  from  the 
variety  of  cases  that  have  spining  up  since 
the  promulgation  of  the  Texas  case.  Our 
conclusion  is,  the  judgment  should  be  and  i» 
affirmed.    All  concur. 


380 


DAMAGES  rOR  CAUSING  DEATH. 


DWYER  V.  CHICAGO,  ST.  P.,  M.  &  O.  RY. 
CO. 

(51  N.  W.  244,  84  Iowa,  479.) 
Supreme  Court  of  Iowa.     Feb.  1,  1892. 
Appeal  from  district  court,  Plymouth  coun- 
ty;  Scott  M.  Ladd,  Judge. 

Action  for  personal   injury.    Judgment  for 
plaintiff  and  the  defendant  appealed. 

J.  H.  &  C.  M.  Swan,   for  appellant.     Joy, 
Hudson,  Call  &  Joy,  for  appellee. 

GRANGER,  J.  1.  The  plaintiff  is  the  ad- 
ministrator of  the  estate  of  Ann  Dwyer, 
deceased,  who  was  on  the  9th  day  of  July, 
1889,  struck  by  defendant's  cars,  as  a  re- 
sult of  which  she  died  about  30  days  there- 
after. The  petition  specifies  the  injuries  sus- 
tained, and  adds:  "All  of  which  caused  her 
great  pain  and  suffering  for  a  period  of  about 
thirty  days,  when  she  died  from  such  in- 
juries." A  motion  to  strike  out  the  words  as 
to  pain  and  suffering  was  oveiTuled,  and  the 
couit  instructed  the  jury  that,  if  it  found  for 
the  plaintiff,  to  allow  a  "reasonable  compen- 
sation for  pain  and  suffering."  The  jury  re- 
turned a  general  verdict  for  the  plaintiff  for 
$3,000,  and  specially  found  that  $2,300  of  the 
amount  was  for  "pain  and  suffering,"  and 
§700  "as  damages  to  the  estate."  An  assign- 
ment brings  in  question  the  correctness  of 
tlie  court's  action  in  permitting  the  jury  to 
consider  pain  and  suffering  as  an  element  of 
damage.  The  action  was  commenced  after 
the  death  of  plaintiff's  intestate.  If  the  ac- 
tion had  been  commenced  in  her  life-time,  it 
is  unquestioned  that  pain  and  suffering  caus- 
ed by  the  injury  would  have  been  a  proper 
element  of  damage;  and  this  would  be  true 
if,  after  the  commencement  of  the  action,  she 
had  died,  and  her  administrator  had  been  sub- 
stituted as  party  plaintiff,  and  prosecuted 
the  suit  to  judgment.  Muldowney  v.  Rail- 
way Co.,  30  Iowa,  4G2.  We  come,  then,  to 
the  important  inquiry  if  such  damages  are 
permissible  in  such  a  case,  where  the  action 
is  commenced  by  the  administi-ator.  The 
only  authority  for  maintaining  such  an  action 
by  the  legal  representative  is  by  virtue  of  the 
statute.  At  the  common  law,  the  cause  of 
action  abated  with  the  death  of  the  injured 
party.  The  law  authorizing  the  action  is 
found  in  Code,  §  2525.  "All  causes  of  action 
shall  survive  and  may  be  brought  notwith- 
standing the  death  of  the  person  entitled  or 
liable  to  the  same."  We  are  cited  to  no  case, 
in  this  or  any  other  state,  where  the  rule 
contended  for  by  the  appellee,  and  allowed 
by  the  district  court,  has  been  sustained.  It 
is  claimed,  however,  that  the  reason  for  this, 
^s  to  other  states,  is  because  of  the  peculiar- 
ity of  the  statutes  under  which  such  actions 
are  permitted  to  survive.  In  several  cases 
this  court  has  expressed  its  view  as  to  the 
measure  of  damages  in  such  cases,  and  in 
such  a  way  that  the  appellant  regards  the 
law  on  this  point  as  settled  in  its  favor,  while 
the  appellee  regai'ds  the  language  thus  relied 


upon  as  merely  incidental  to  other  points  de- 
termined, and  in  no  way  decisive  of  the  ques- 
tion now  before  us.  It  is  true  that  the  pre- 
cise question  now  before  us  was  not  involved 
for  determination  in  any  of  the  Iowa  cases 
cited,  and  the  language  relied  npon  by  the  ap- 
pellant has  been  used  incidentally  in  the  dis- 
cussion of  other  questions;  but  it  is  not  to  be 
undei'stood,  because  of  this,  that  such  lan- 
guage is  without  value  in  our  deliberations  on 
this  question;  for  much  of  the  language  so 
used  is  in  regard  to  questions  so  allied  to  this 
in  its  legal  significance  as  to  make  them  de- 
terminable upon  quite  similar  considerations. 
For  instance,  the  rule  as  to  the  measure  of 
damage  in  cases  of  this  kind  has  been  consid- 
ered, and,  with  the  point  before  us  in  view,  a 
rule  excluding  such  damage  has  been  adopted. 
In  Rose  v.  Railway  Co.,  39  Iowa,  246,  it  is 
said:  "The  action  is  brought  by  the  adminis- 
trator for  the  injury  to  the  estate  of  the  de- 
ceased sustained  in  his  death.  There  is  there- 
fore no  basis  for  damage  for  pain  and  suffer- 
ing. *  *  *  Compensation  for  the  pecuuiai-y 
loss  to  his  estate  is  alone  to  be  allowed." 
See,  also,  Donaldson  v.  Railway  Co.,  18  Iowa, 
at  page  290,  and  Muldowney  v.  Railway  Co., 
36  Iowa,  at  page  468.  In  the  latter  case  the 
action  was  commenced  by  the  injured  party, 
who  died  pending  the  suit,  and  his  adminis- 
trator was  substituted;  and  it  was  held  that 
pain  and  suffering  were  proper  elements  of 
damage  because  of  the  action  having  been 
commenced  by  the  injured  party;  but  the 
court  guards  the  rule  by  saying:  "A  difl'erent 
rule  woidd  obtain  if  the  action  had  been  com- 
menced after  his  death."  It  is  thought  that 
the  expression  may  be  accounted  for  on  the 
theory  that  the  case  was  determined  under  a 
dift'erent  statute.  Rev.  St.  §  3407,  under 
which  the  action  arose,  is  as  follows:  "No 
cause  of  action  ex  delicto  dies  with  either  or 
both  of  the  parties,  but  the  prosecution  there- 
of may  be  commenced  or  continued  by  or 
against  their  personal  representatives."  With 
reference  to  the  particular  matter  under  con- 
sideration, it  is  difflcult  to  trace  a  distinction 
between  the  statutes.  The  one  says,  in  ef- 
fect, that  such  causes  of  action  shall  survive 
the  party,  and  the  other  that  it  does  not  die 
with  the  party.  The  effect  of  each  is  to  cre- 
ate a  survival,  and  the  one,  as  plainly  as  the 
other,  contemplates  the  existence  of  the  cause 
of  action  before  the  death.  It  is  not  the  ef- 
fect of  either,  as  seems  to  be  thought  by  the 
appellee,  to  create  a  cause  of  action  because 
of  the  death.  The  statutes  deal  with  the 
"cause  of  action,"  and  not  with  the  rule  of 
damage  to  be  applied.  In  fixing  the  dam- 
age, we  look  to  the  wrong  to  be  remedied; 
to  the  injury  to  be  repaired.  If  the  action  is 
brought  by  the  injured  party,  the  law  at- 
tempts to  remedy  the  wrong  to  him,— not  spe- 
cifically to  his  estate,— and  that  may  include 
loss  of  property,  time,  and  that  bodily  ease 
and  comfort  to  which  he  is  entitled  as  against 
the  Avrong-doers.  If  the  action  is  brought  to 
repair  an  injury  to  his  estate,  the  law  looks. 


DAMAGES  rOU  CAUSING  DEATH. 


asi 


iu  fixing  the  rule  of  damage,  to  how  the  es- 
tate is  affected  by  the  act,  aud  attempts  to 
repair  the  injury.  Loss  of  time  aud  expenses 
paid,  as  a  result  of  the  wroug,  presumably 
lessen  the  estate;  but  bodily  pain  and  suffer- 
ing iu  no  manner  affect  it.  It  is  an  item  of 
damage  peculiar  to  the  person,  and  not  to 
pecuniai-y  or  property  rights.  Under  our  stat- 
ute, these  damages  belong  "to  the  estate  of 
the  deceased."  Code,  §  252G.  This  distinc- 
tion is  maintained  throughout  all  the  cases 
and  authorities  that  have  come  to  our  notice. 
This  court  has  repeatedly  said  that  these  ac- 
tions are  for  "injury  to  the  estate."'  See 
cases  cited  supra:  Rose  v.  Railway  Co.,  Don- 
aldson V.  Railway  Co.,  Muldowney  v.  Rail- 
way Co.  Mr.  Sutherland,  in  his  work  on 
Damages,  (volume  3,  p.  282,)  speaking  in  gen- 
eral of  these  statutes  of  survival  of  actions, 
says:  "The  measure  of  damages  is  not  the 
loss  or  suffering  of  the  deceased,  but  the  in- 
jury resulting  from  his  death  to  his  family. 
It  is  only  for  pecuniary  injuries  that  this  stat- 
utory right  of  action  is  given.  Although  it 
can  be  maintained  only  in  cases  in  which  an 
action  could  have  been  brought  by  the  de- 
ceased if  he  had  survived,  damages  are  given 
on  different  principles  and  for  different  caus- 
es. Neither  the  pain  and  suffering  of  the  de- 
ceased, nor  the  grief  and  wounded  feelings  of 
his  surviving  relatives,  can  be  taken  into  ac- 
count in  the  estimate  of  damages."    In  Rail- 


way Co.  V.  Barron,  5  Wall.  90,  a  like  case,  it 
is  said,  speaking  of  the  wife  or  next  of  kiu, 
who,  under  the  Illinois  statutes,  are  the  bene- 
ficiaries in  such  a  case:  "They  are  confined 
to  the  pecuniary  injuries  resulting  to  the  wife 
and  next  of  kin;  whereas,  if  the  deceased  had 
survived,  a  wider  range  of  inquiry  would 
have  been  admitted.  It  would  have  embraced 
personal  suffering  as  well  as  pecuniary  loss, 
and  there  would  have  been  no  fixed  limita- 
tion as  to  the  amount."  The  language  of 
the  Illinois  statute  is  different  in  phraseology 
from  ours,  but  not  to  the  extent  of  inducing 
a  different  rule  in  this  respect.  Under  the 
statute  of  Minnesota,  so  similar  to  ours  as  to 
justify  the  same  rule  as  to  these  damages,  it 
is  held  that  "no  compensation  can  be  given 
*  *  *  for  the  pain  and  suffering  of  the  de- 
ceased." Hutchius  V.  Railway  Co.  (Miuu.)  -IG 
N.  W.  79.  We  conclude,  without  doubt,  that 
the  district  court  erred  in  its  ruling  on  tho 
motion  and  the  insti'uction  to  the  jury.  Some 
other  questions  are  argued  which  we  have 
examined,  the  consideration  of  which  would 
require  extensive  quotations  from  the  evi- 
dence, and  we  think  they  do  not  involve  re- 
versible error,  and  it  is  unnecessai-y  to  dis- 
cuss them.  The  cause  is  remanded  to  the 
district  court,  with  instructions  to  deduct 
from  the  judgment  entered  the  $2,300  allowed 
for  pain  and  suffering,  and  give  judgment  for 
the  balance.     Modified  and  affirmed. 


*^82 


DAMAGES  FOR  CAUSING  DEATH. 


MORGAN   V.    SOUTHERN    PAC.    CO.     (No. 
14,812.) 

(30  Pac.  603,  95  Cal.  510.) 

Supreme   Court   of    California.    Aug.    5,    1892. 

Department  2.  Appeal  from  superior  court, 
Kern  county;   A,  R.  Conklin,  Judge. 

Action  by  Flora  Morgan  against  the  South- 
ern Pacific  Company  to  recover  damages  for 
the  death  of  her  child  caused  by  dei'endant's 
negligence.  From  a  judgment  rendered  on 
the  verdict  of  a  jury  in  favor  of  plaintiff,  de- 
fendant appeals.     Revei'sed. 

The  facts  fully  appear  in  Morgan  v.  Pacific 
Co.,  30  Pac.  601. 

E.  L.  Craig,  Foshay  Walker,  Horace  Hawes, 
and  R.  B.  Carpenter,  for  appellant.  Charles 
<j.  Lamberson,  Lambei-son  &  Taylor,  and  J. 
W.  Ahern,  for  respondent. 

McFARLAND,  J.  The  parties  to  this  ac- 
tion are  the  same  as  in  Morgan  v.  Pacific  Co., 
30  Pac.  Rep.  601  (No.  14,S11,  this  day  decid- 
ed), in  which  plaintiff  recovered  a  judgment 
for  $15,000  for  alleged  personal  injuries  re- 
ceived by  being  thrown  from  the  steps  of  de- 
fendant's car,  which  judgment  was  by  this 
court  affirmed.  When  she  fell  from  the  steps 
of  the  car  she  had  in  her  arms  her  infant 
daughter,  aged  about  two  years.  Nine  days 
afterwards  the  child  died  from  an  attack  of 
pneumonia;  and  plaintiff  brought  this  present 
action  to  recover  damages  for  the  death  of  said 
child,  upon  the  theory  that  the  pneumonia  was 
caused  by  said  fall.  The  jury  gave  her  dam- 
ages in  the  amount  of  $20,000,  for  which  sum 
judgment  was  rendered;  and  defendant  ap- 
peals from  the  judgment,  and  from  an  order 
denying  a  motion  for  a  new  trial.  The  evi- 
<lence  upon  the  issues  of  the  alleged  negligence 
of  defendant's  employes  at  the  time  of  the  ac- 
cident, and  the  alleged  contributory  negligence 
of  plaintiff,  was  substantially  the  same  as  in 
the  other  case,  and  as  to  those  issues  the  ver- 
dict cannot  be  disturbed.  There  was  some  ev- 
idence tending  slightly  to  show  that  the  death 
of  the  child  was  caused  by  the  accident,  but 
it  is  not  necessary  to  inquire  whether  or  not  it 
was  sufficient  to  establish  that  fact,  because 
the  judgment  must  clearly  be  reversed  on  ac- 
count of  the  excessive  damages  awarded  by 
the  jury. 

There  was  no  averment  in  the  complaint  of 
any  special  damage,  and  no  averment  of  any 
damage  at  all,  except  the  general  statement 
that  the  child  died,  "to  the  damage  of  plaintiff 
in  tlie  sum  of  fifty  thousand  dollars;"  and 
there  was  no  evidence  whatever  introduced  or 
offered  upon  the  subject  of  damage.  The  ju- 
ry, therefore,  had  nothing  before  them  upon 
which  to  base  damages  except  the  naked  fact 
of  the  death  of  a  female  child  two  years  old; 
and  it  is  apparent,  at  first  blush,  that  "the 
amount  of  the  damages  is  obviously  so  dispro- 
portionate to  the  injury  proved  as  to  justify 
the  conclusion  that  the  verdict  is  not  the  result 
of  the  cool  and  dispassionate  discretion  of  the 


juiy."  The  main  element  of  damage  to  plain- 
tiff was  the  probable  value  of  the  sei-vices  of 
the  deceased  until  she  had  attained  her  ma- 
jority, considering  the  cost  of  her  support  and 
maintenance  during  the  early  and  helples? 
part  of  her  life.  We  think  that  the  court  erred 
in  charging  that  "the  jui'y  is  not  limited  by  the 
actual  pecuniary  injm'y  sustained  by  her,  by 
reason  of  the  death  of  her  child."  An  action 
to  recover  damages  for  the  death  of  a  relative 
was  not  knoT\m  to  the  common  law;  it  is  of 
recent  legislative  origin.  There  are  statutes 
in  many  of  the  American  states  providing  for 
such  an  action,  and  it  has  been  quite  uniform- 
ly held  that  in  such  an  action  the  plaintiff  does 
not  represent  the  right  of  action  which  the  de- 
ceased would  have  had  if  the  latter  had  sur- 
vived the  injury,  but  can  recover  only  for  the 
pecuniary  loss  suffered  by  the  plaintiff  on  ac- 
count of  the  death  of  the  relative;  that  sorrow 
and  mental  anguish  caused  by  the  death  are 
not  elements  of  damage;  and  that  nothing  can 
be  recovered  as  a  solatium  for  wounded  feel- 
ings. The  authorities  outside  of  this  state  are 
almost  unanimous  to  the  point  above  stated. 
The  following  are  a  few  of  such  authorities: 
Railroad  Co.  v.  Vandever,  36  Pa.  St.  29S;  Iron 
Co.  V.  Rupp,  100  Pa.  St.  95;  Raikoad  Co.  v. 
Freeman,  36  Ark.  41;  Railroad  Co.  v.  Brown, 
20  Kan.  443;  Pennsylvania  Co.  v.  Lilly,  73 
Ind.  252;  Donaldson  v.  Railroad  Co.,  IS  Iowa, 
280;  Railroad  Co.  v.  Paulk,  21  Ga.  356;  Rail- 
road Co.  v.  Miller,  2  Cclo.  466;  Kesler  v. 
Smith,  66  N.  C.  154;  March  v.  Walker,  48 
Tex.  372;  Railroad  Co.  v.  Levy,  59  Tex.  56)3; 
James  v.  Christy,  18  Mo  162;  Hyatt  v. 
Adams,  16  Mich.  180;  Chicago  v.  Major,  18 
lU.  349;  Railroad  Co.  v.  Delaney,  82  111.  198; 
Blake  v.  Railroad  Co.,  18  Q.  B.  93. 

With  respect  to  the  decisions  in  this  state  we 
do  not  think  those  cited  by  respondent  (except 
one)  are,  when  closely  examined,  inconsistent 
with  the  general  authorities.  Beeson  v.  Min- 
ing Co.,  57  Cal.  20,  is  a  leading  case  on  the 
subject,  and  is  cited  by  all  the  cases  which 
follow  it.  In  that  case  the  action  was  brought 
by  the  widow  for  the  death  of  her  husband, 
and  the  question  was  whether  or  not  the  lower 
court  eri'ed  in  allowing  evidence  of  the  kindly 
relations  between  the  plaintiff  and  the  de- 
ceased during  the  lifetime  of  the  latter.  The 
court  sustained  the  ruling  of  the  court  below, 
but  clearly  upon  the  ground  that  those  rela- 
tions could  be  considered  only  in  estimating 
the  pecuniai-y  loss.  The  court  say:  'Tt  is 
true  that  in  one  sense  the  value  of  social  re- 
lations and  of  society  cannot  be  measured 
by  any  pecuniary  standard;  *  *  *  but,  in 
another  sense,  it  might  be  not  only  possible, 
but  eminently  fitting,  that  a  loss  from  sever- 
ing social  relations,  or  from  deprivation  of 
society,  might  bo  measured  or  at  least  con- 
sidered from  a  pecuniary  standpoint.  *  *  * 
If  a  husband  and  wife  were  living  apart  by 
mutual  consent,  neither  rendering  the  other 
assistance  or  kindly  oflBces,  the  jury  might 
take  into  consideration  the  absence  of  social 
relations  and  the  absence  of  society  in  esti- 


DAMAGES  FOR  CAUSING  DEATH. 


883 


mating  the  loss  sustained  by  either  from 
the  death  of  the  other.  So  if  the  husband 
and  wife  had  lived  together  in  concord,  each 
rendering  kindly  offices  to  the  other,  such 
facts  might  be  taken  into  consideration,  not, 
as  the  books  say,  for  the  pui-pose  of  afford- 
ing solace  in  money,  but  for  the  purpose  of 
estimating  pceuuiai-y  losses.  The  loss  of  a 
kind  husband  may  be  a  considerable  pe- 
cuniary loss  to  a  wife;  she  loses  his  advice 
and  assistance  in  many  matters  of  domestic 
economy."  A  quotation  is  made  from  a 
Pennsylvania  case  where  the  same  rule  was 
ispplied  to  the  loss  of  a  wife,  the  court  say- 
ing that  "certainly  the  service  of  a  wife  is 
pecuniarily  more  valuable  than  that  of  a 
mere  hireling."  The  Beeson  Case,  therefore, 
does  not  decide  that  the  jury  may  depart 
from  a  pecuniary  standpoint  in  assessing 
damages;  it  merely  holds  that  in  estimating 
the  pecuniary  losses  of  a  wife  from  the 
death  of  her  husband  they  may  consider 
whether  or  not  the  deceased  was  a  good  hus- 
band, able  and  willing  to  provide  well  for 
his  wife.  The  opinion  of  the  court  no  doubt 
goes  somewhat  further  in  this  direction  than 
the  general  current  of  authorities,  but  it  de- 
cides nothing  more  than  above  stated.  Cook 
v.  Railroad  Co..  60  Cal.  604.  also  cited  by  v(*- 
spondent,  decides  nothing  more  than  the 
Beeson  Case.  In  McKeever  v.  Railroad  Co., 
59  Cal.  300,  the  point  was  not  involved,  and 
in  Nehrbas  v.  Railroad  Co.,  02  Cal,  320,  the 
point  does  not  appear  in  any  way  to  have 
been  involved;  and  the  dictum  at  the  close 
of  the  opinion,  as  it  refers  to  the  Beeson 
Case,  must  be  held  as  only  intended  to  go  to 
the  length  of  the  latter  case.  It  is  true,  how- 
ever, that  in  Cleary  v.  Railroad  Co.,  76  Cal. 
240,  18  Pac.  269,  a  decision  in  department, 
views  were  expressed  favorable  to  respond- 
ent's contention.  The  opinion  of  the  commis- 
sion in  that  case  was,  however,  expressly 
based  on  Beeson  v.  Mining  Co.,  supra,  and 
upon,  as  we  have  seen,  a  misunderstanding 
of  that  case.  There  appears  to  have  been  no 
petition  for  a  hearing  in  bank.  It  was  stat- 
ed in  that  case  that  there  could  be  a  recov- 
ery for  the  "mental  anguish  and  suffering  of 
the  parents,"  but  we  have  been  referred  to 
no  other  case  that  holds  such  doctrine.  Cer- 
tainly it  was  not  so  held  in  the  Beeson 
Case.  But  entirely  contrary  views  were  ex- 
pressed in  the  latest  decision  of  this  court 
on  the  subject  (Munro  v.  Reclamation  Co., 
84  Cal.  515,  24  Pac.  303).  In  that  case— 
which  was  for  the  death  of  an  adult  sou— 
the  lower  court  had  instiiicted  that  the  jury 
in  estimating  the  damages  might  consider 
"the  sorrow,  grief,  and  mental  suffering  oc- 
casioned by  his  death  to  his  mother;"  and 
this  court  held  the  instruction  erroneous, 
and  for  that  reason  reversed  the  judgment, 
the  coiu't  holding  that  such  a  rule  would 
afford  an  "opportunity  to  run  into  wild  and 
excessive  verdicts."  The  court  said:  "We 
are  of  opinion  that  the  court  erred  in  includ- 
ii!g   in   the   instruction   the   words,    'sorrow, 


grief,  and  mental  suffering,  occasioned  by 
the  death  of  the  son  to  his  mother.'  In  thus 
directing  the  jury  the  court  fell  into  error. 
In  our  opinion,  the  damage  should  have  been 
confined  to  the  pecuniary  loss  suffered  by 
the  mother,  and  the  loss  of  the  comfort,  so- 
ciety, support,  and  protection  of  the  deceas- 
ed. *  *  *  We  have  found  no  casein  which 
damages  for  sorrow,  grief,  and  mental  suf- 
fering are  allowed,  under  any  of  the  stat- 
utes." And,  further,  that  the  statutoi-y  ac- 
tion is  a  new  one,  "and  not  tlie  transfer  to 
the  representative  of  the  right  of  action 
which  the  deceased  person  would  have  had 
if  he  had  survived  the  injury."  The  case 
was  decided  in  bank.  Justice  Thornton  de- 
livered the  opinion,  which  was  concurred  in 
by  two  other  justices,  and  a  fourth  justice 
concurred  in  tlie  judgment,  and  must,  there- 
fore, have  concurred  in  the  one  main  rea- 
son for  which  the  judgment  was  reversed. 
He  may  not  have  been  ready  to  say  that  the 
"comfort  and  society"  of  the  deceased  could 
be  considered.  There  was  only  one  dissent, 
but  upon  what  ground  does  not  appear.  We 
think,  therefore,  that  the  case  is  full  author- 
ity on  the  main  point.  At  all  events,  we 
think  that  the  opinion  states  the  general 
propositions  of  law  governing  the  case  cor- 
rectly, although,  as  to  one  matter,  it  may  be 
misunderstood.  The  language,  "the  loss  of 
the  comfort,  society,  support,  and  protection 
of  the  deceased,"  must  be  held  as  having 
been  used  within  the  meaning  given  to  it  in 
Beeson  v.  Mining  Co.,  supra,  as  hereinbefore 
stated,  that  is,  with  reference  to  the  value 
of  the  life  of  the  deceased,  and  the  pecuniai-y 
loss  to  the  plaintiff  caused  by  the  death. 
The  said  language  would  not  be  correct  in 
any  other  sense.  But  in  the  case  at  bar  the 
jury  were  not  confined  by  the  instructions  to 
pecuniary  loss  or  any  other  kind  of  loss; 
they  were  given  wide  range  to  run  into  any 
wild  and  excessive  verdict  which  their  ca- 
priee  might  suggest.  Wedonotthinkthat  the 
complaint  is  defective  because  it  does  not 
specially  aver  the  loss  of  the  services  of  the 
deceased;  that  was  a  natural  and  necessai-y 
sequence  of  the  death.  It  was  not  special 
damage  necessary  to  be  averred.  There  is 
nothing  in  the  point  made  by  respondent 
that  the  answer  was  not  verified.  Upon  that 
point  the  court  ruled  in  favor  of  defendant, 
and  plaintiff'  is  not  appealing.  The  judg- 
ment and  order  appealed  from  are  reversed, 
and  a  new  trial  ordered. 

SHARPSTEIN,  J.    I  concur. 

DB  HAVEN,  J.  I  concur  in  the  judgment 
and  generally  in  the  foregoing  opinion.  Tlie 
measure  of  damages  in  actions  by  a  parent 
for  the  death  of  a  child,  when  the  facts  are 
not  such  as  to  warrant  exemplary  damages, 
is  correctly  stated  in  section  763  of  Shear- 
man and  Redfleld  on  Negligence,  as  follows: 
"The  damages  recoverable  by  a  husband,  par- 
ent, or  master  for  a  negligent  injury  to  the 


a84 


DAMAGES  POli  CAUSl^sG  DEATH. 


person  of  his  wife,  child,  or  servant  are 
strictly  limited  to  an  amount  fully  compen- 
satory for  the  consequent  loss  of  service  for 
a  period  not  exceeding  the  minority  of  the 
child,  or  the  term  of  service  of  a  servant, 
and  the  expenses  which  the  plaintiff  has  in- 
curred in  consequence  of  the  injury,  such 
as  for  surgical  attendance,  nursing,  and  the 
like."  The  sixth  instruction  given  upon  the 
:c-€[uest  of  plaintiff,  to  the  effect  that  "in 
esliniating  the  damage  sustained  by  her  the 
jury  is  not  limited  by  the  actual  pecuniary 
injury  sustained  by  her  by  reason  of  the 
death  of  her  child,  but  such  damages  may 
be  given  as  under  all  the  circumstances  of 
the  case  may  be  just,"  is  contrary  to  this 
rule,  and  was  erroneous.  The  object  of  sec- 
tion 370  of  the  Code  of  Civil  Procedure  is 
not  to  give  redress  or  compensation  for  the 
mental  distress  of  a  mother,  consequent  up- 
on the  death  of  her  child.  The  general  lan- 
guage of  section  377  of  the  Code  of  Civil 
Procedure,  that  in  actions  of  this  character 
"such  damages  may  be  given  as  under  all 
the  circumstances  of  the  case  may  be  just," 


is  used  with  reference  to  the  fact  that  the 
damages  which  are  allowed  to  be  recovered 
by  sections  37G  and  377  of  the  Code  of  Civil 
Procedure  are,  with  the  exception  of  the  ex- 
penses incurred  hy  the  plaintiff  in  conse- 
quence of  the  injury  resulting  in  the  death 
for  which  they  are  claimed,  prospective  in 
their  nature,  relating,  as  thej'  do,  to  the  loss- 
of  future  service,  and  necessarily  based  up- 
on probabilities,  and  upon  data  which  in 
many  res:)ects  are  uncevtaiu,  and  therefore 
the  estimate  of  such  damages  must  neces- 
sarily call  for  the  exercise  of  a  very  large  dis- 
cretion upon  the  part  of  the  jury;  and  all 
that  is  meant  by  the  language  quoted  is  that 
the  jury  shall,  in  view  of  all  the  circumstan- 
ces of  the  case,  and  considering  also  the  age 
and  the  ability  of  the  deceased  to  serve  the 
relative  for  whose  benefit  the  action  is 
brought,  give  such  damages  as  they  shall 
deem  just,  keeping  in  view  that  such  dam- 
ages are  to  be  measured  by  what  shall  fair- 
ly seem  the  pecuniary  injury  or  loss  to  the 
plaintiff. 
Hearing  in  bank  denied. 


DAMAGES  FOR  CAUSING  DEATH. 


8,^.3 


DEMAREST  et  al.   v.   LITTLE. 
(47  N.  J.  Law.  28.) 

Snpronio  Court  of  N^ew  Jersey.      Feb.  Terra. 

1885. 

Argiiod  at  November  term,  1884,  before 
BEASLEY,  C.  J.,  and  DIXON,  REED,  and 
MAOIE.  JJ. 

B.  Williamson,  for  the  rule.  .John  Linn, 
opposed. 

MAGIE,  J.  This  action  was  brought  to  re- 
cover damages  for  the  death  of  plaintiffs 
testator,  which  occurred  in  the  disaster  at 
Parker's  Creek  Bridge,  on  the  Long  Branch 
Railroad,  on  June  29,  1882.  Defendant  was 
charged  with  responsibility  therefor  as  re- 
ceiver of  the  Central  Railroad  Company  of 
New  Jersey,  and  as  having,  in  that  capacity, 
contracted  to  carry  deceased  with  due  care. 

The  case  was  first  tried  in  lS8o,  and  a  ver- 
dict rendered  for  plaintiffs,  assessing  their 
damages  at  !f;;u»,000.  This  verdict  was  aft- 
erwards set  aside  upon  a  rule  to  show  cause. 
No  opinion  was  delivered.  l)ut  the  court  an- 
nounced that  a  new  trial  was  allowed  be- 
cause the  damages  were  excessive.  The  case 
lias  l)een  again  tried,  and  the  verdict  has 
been  again  rendered  for  plaintiffs,  assessing 
their  damages  at  .$27,."»00.  A  rule  to  show 
cause  was  allowed,  and  is  now  sought  to  be 
made  absolute  upon  the  following  grounds: 
First,  that  the  evidence  was  not  sutticient  to 
Justify  the  conclusion  that  testator's  death 
\v;is  due  to  negligence  or  want  of  care:  sec- 
ond, that  if  so,  defendant,  as  receiver,  was 
not  liable  for  any  negligence  except  his  own, 
while  the  alleged  negligence  was  that  of  em- 
ployes; and  third,  that  the  damages  award- 
ed are  excessive. 

Upon  the  first  gro\md  it  was  urged  tliat 
the  evidence  upon  this  trial  was  variant  from 
and  more  favorable  to  defendant  than  that 
produced  on  the  former  trial.  Whether  that 
be  so  or  not.  a  careful  perusal  of  the  evi- 
dence satisfies  me  that  there  was  sufficient 
to  warrant  the  conclusion  that  testator's 
death  was  due  to  negligence  or  want  of  proi)- 
er  care. 

The  second  objection  has  already  been  dis- 
posed of  in  a.  case  growing  out  of  this  same 
disaster,  and  in  which  the  court  of  errors 
has  affirmed  the  responsibility  of  the  receiv- 
er for  such  negligence.  Little  v.  Dusenlierry, 
4G  N.  J.  Law.  (514.  The  verdict  ought  not  to 
be  disturbed  on  those  grounds. 

The  question  presented  by  tlie  claim  that 
the  damages  are  excessive  is  of  more  difficul- 
ty. Tlie  action  is  created  by  statute,  which 
supplies  the  sole  measure  of  the  damages  re- 
coverable tlierein.  They  are  to  be  determin- 
ed exclusively  by  reference  to  the  pecuniary 
injury  resulting  to  the  widow  and  next  of 
Iviu  of  deceased  by  his  death.  The  injury  to 
be  thus  recovered  for  has  been  defined  by 
this  court  to  be  "the  deprivation  of  a  reason- 
able expectation  of  a  pecuniary  advantage 
which  would  have  resulted  by  a  continuance 
LAW  I)AM.2d  Ed.— 25 


of  the  life  of  deceased."  Paulmier  v.  Rail- 
road Co.,  34  N.  J.  Law,  151.  Compensation 
for  such  deprivation  is  therefore  the  sole 
measure  of  damage  in  such  cases.  A  diffi- 
cidt  task  is  thereby  imposed  up(m  a  jury,  for 
they  are  obliged  to  determine  probabilities, 
and  "must,  to  a  large  extent,  form  tlieir  es- 
timate of  damages  on  conjectures  and  uncer- 
tainties." But  the  case  in  hand  seems  to  pre- 
sent less  complicated  problems  than  other 
cases  of  the  same  nature. 

Deceased  left  no  widow,  and  but  three 
children.  All  of  them  had  reached  maturity. 
Two  sons  were  self-supporting;  the  daugli- 
ter  was  married.  He  owed  no  present  duty 
of  support,  and  there  is  nothing  to  show  any 
fixed  allowance  or  even  casual  benefactions 
to  them.  They  are  therefore  deprived  of  no 
immediate  pecuniary  advantage  derivable 
from  him.  At  his  death  he  was  in  business. 
in  partnership  with  his  sons  and  son-in-law. 
All  the  partners  gave  attention  to  the  busi- 
ness and  the  capital  was  furnished  by  de- 
ceased. His  death  dissolved  the  partnerslii]) 
and  depi-ived  the  sin-viving  partners  of  sucli 
benefit  as  they  had  derived  from  his  credit, 
capital,  skill  and  reputation.  Biit  the  in- 
jury thus  resulting  is  not  within  the  scope  of 
this  statute,  which  gives  damages  for  inju 
i"ies  resulting  from  the  severance  of  a  rela- 
tion of  kinship  and  not  of  contract.  No  dam- 
ages could  be  awarded  on  that  ground. 

Defendants  strenuously  urge  that,  outside 
of  the  partnership  or  in  the  event  of  its  dis- 
solution, the  next  of  kin  liad  a  reasonable 
exiiectation  of  deriving  from  the  parental  re- 
lation an  advantage  by  way  of  services  ren- 
dered or  counsel  given  by  deceased  in  their 
affairs.  A  claim  of  this  sort  must  be  care- 
fully restricted  witliin  tln^  limits  of  the  stat- 
ute. The  counsels  of  a  father  may,  in  a  mor- 
al point  of  view,  be  of  inestimable  value. 
The  confidential  intercourse  between  parent 
and  child  may  be  prized  beyond  measure,  and 
its  deprivation  may  be  pi'oductive  of  tlie  keen- 
est pain.  But  the  legislature  has  not  seen 
fit  to  permit  recovery  for  such  injuries.  It 
has  restricted  recovery  to  the  pecuniary  in- 
jury: that  is.  the  loss  of  something  having 
pecuuiai'y  value. 

Now,  it  may  with  some  reason  be  anticipat- 
ed that  a  father,  out  of  love  and  affection, 
might,  if  circumstances  rendered  it  proper, 
perform  gratuitous  service  for  a  ciiild,  whicli 
by  rendering  unnecessary  the  employment  of 
a  paid  servant,  would  be  of  pecuniary  value, 
and  that  he  might,  by  advice  in  respect  to 
business  affairs,  be  of  a  possible  pecuniary 
lieiietit.  But  whetlier  such  an  anticipation  is 
reasonable  or  not  must  depend  on  the  circum- 
stances. Considering  the  age.  the  assured 
I)osition,  the  business  and  other  relations  of 
tlie.se  children,  it  is  obvious  that  the  proba- 
bility of  any  pecuniary  advantage  to  accrue 
to  them  in  these  modes  was  very  small.  In- 
deed, it  would  not  be  too  much  to  sa.v  that 
resort  must  be  had  to  speculation  to  discov- 
er any  such  advantage.     At  all  events,  com- 


380 


DAMAGES  FOR  CAUSING  DEATH. 


pcnsation  for  this  injury  in  this  case  could 
not  exceed  a  small  sum  without  being  excess- 
ive. 

The  principal  basis  for  plaintiff's  claim  is 
obviously  this:  That  the  death  of  deceased 
put  an  end  to  accumulations  which  he  might 
have  thereafter  made  and  which  might  have 
come  to  the  next  of  kin.  Deceased  had  ac- 
cumulated aliout  $70,000,  all  of  which,  ex- 
cept $10,000  capital  invested  in  the  business, 
seems  to  have  been  placed  in  real  estate  and 
securities  as  if  for  permanent  investment. 
By  his  will  the  bulk  of  his  property  was  given 
to  his  children.  At  his  death  he  had  no  oth- 
er sources  of  income  than  his  investments 
and  his  business. 

In  determining  the  probability  of  accumu- 
lations l)y  deceased  if  ho  had  continued  in 
life,  no  account!  should  be  taken  of  the  in- 
come derivable  from  his  investments.  These 
have  come  in  bulk  to  the  children,  who  may, 
if  they  choose,  accumulate  such  income.  A 
deprivation  of  the  probability  of  his  accumu- 
lating therefrom  is  no  pecuniary  injury.  On 
the  contrary,  it  is  rather  a  benefit  to  them 
to  receive  at  once  the  whole  fund  in  lieu  of 
the  mere  contingency  or  probability  of  re- 
ceiving it,  though  with  its  accumulations  (at 
best  uncertain),  in  the  future.  Indeed,  the 
benefit  thus  accruing  to  the  next  of  kin  in 
receiving  at  once  this  whole  property,  in  the 
view  of  one  of  the  court,  is  at  least  equiv- 
alent to  the  present  value  of  the  probability 
of  their  receiving  it  hereafter,  if  deceased  had 
continued  in  life,  with  all  his  probable  future 
accumulations  from  any  source  whatever,  in 
which  case  it  is  evident  that  his  death  has  not 
resulted  in  any  pecuniary  injury  to  them. 
But  without  adopting  this  view  of  the  evi- 
dence, it  is  plain  that  in  determining  probable 
future  accumulations  attention  should  be  re- 
stricted to  such  as  would  arise  from  the  labor 
of  deceased  in  his  business.  His  receipts 
from  the  l)usiness  for  the  two  years  it  had 
been  conducted  were  proved.  What  he  ex- 
pected was  not  proved,  but  left  to  be  in- 
ferred for  his  mode  of  life.  At  death  he  was 
altout  fifty-six  and  a  half  years  old,  and  by 
the  proofs  had  an  expectation  of  life  of  six- 
leeu  and  seven-tenths  years. 

From  these  facts  the  jury  Avere  to  find  what 
deceased  would  probably  have  accumulated, 
what  probability  there  was  that  his  next  of 
kin  would  have  received  his  acc-umulations, 
and  then  what  sum  in  hand  would  com]>en- 
.sate  them  for  being  deprived  of  that  proba- 
bility. In  what  manner  the  jury  attempted 
to   solve   this   problem    we  cannot   ascertain. 


Plaintiffs'  counsel  attempts  to  show  the  coi-- 
rectness  of  the  result  reached,  by  calculation. 
He  assumes  the  income  of  deceased  from  his 
business  during  the  last  year  as  the  annual 
income  likely  to  be  obtained,  and  deducts  on- 
ly $1,000  each  year  as  the  probable  expendi- 
ture of  deceased,  and  then  finds  the  present 
worth  of  the  net  income  so  determined  for 
the  deceased's  expectation  of  life  is  $27,710.- 
32. 

This  calculation  tests  the  propriety  of  this 
verdict,  and  in  my  judgment  conclusively 
shows  that  it  was  rather  the  result  of  sym- 
pathy or  prejudice  than  a  fair  deduction  from 
the  evidence.  For,  assuming  the  amount  at- 
tributable to  the  loss  of  deceased's  services 
was  but  small  (and  if  more  it  was  excessive), 
the  award  of  the  jury  on  this  account  was 
but  a  few  hundred  dollars  less  than  the  pres- 
ent worth  of  the  full  net  income  if  received 
for  his  full  expectancy  of  life.  To  reach  such 
a  result  the  jury  must  have  found  every  one 
of  the  following  contingencies  in  favor  of 
the  next  of  kin,  viz.:  That  deceased,  who  had 
already  acquired  a  competence,  would  have 
continued  in  the  toil  of  business  for  his  full 
expectancy  of  life;  that  he  would  have  re- 
tained sufficient  health  of  body  and  vigor  of 
mind  to  enable  him  to  do  so,  and  as  success- 
fully as  before;  that  he  would  have  been  able 
to  avoid  the  losses  incident  to  business,  and 
would  have  safely  invested  his  accumulations; 
and  that  the  next  of  kin  would  have  received 
such  accumulations  at  his  death.  A  verdict 
which  attributes  no  more  weight  than  this 
has,  to  the  probability  that  one  or  more  of  all 
these  contingencies  would  happen,  cannot 
have  proceeded  from  a  fair  consideration  of 
the  case  made  by  the  evidence.' 

Having  reached  this  conclusion,  what  should 
be  the  result  as  to  the  verdict?  The  charge 
of  the  court  below  declared  the  rule  of  dam- 
ages with  accuracy.  The  verdict  is  a  sec- 
ond one.  and  somewhat  smaller  than  that 
previously  set  aside  as  excessive.  It  is  un- 
usual to  set  aside  a  second  verdict,  but  though 
unusual  it  is  within  the  power  of  the  couri 
in  the  exercise  of  its  discretion.  That  power 
will  be  discreetly  used  in  setting  aside  any 
verdict  which  does  palpable  injustice. 

To  obviate,  if  possible,  the  necessity  of  an- 
other trial,  it  has  been  determined  that  if 
jilaiutiffs  will  reduce  their  verdict  to  $l.").0(;ii 
by  remitting  the  excess,  the  verdict  may 
stand  for  that  sum,  and  the  rule  to  show 
cause  be  discharged.  Unless  they  const  nt  to 
such  remission,  the  rule  must  be  made  ab- 
solute. 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


387 


DWIGHT  V.  ELMIRA,  C.  &  N.  R.  CO. 

(30  N.  E.  398,  132  N.  Y.  199.) 

<>ourt  of  Appeals  of  New  York,  Second  Division. 
March  15,  1892. 

Appeal  from  supreme  court,  general  term, 
Fourth  department. 

Action  by  Ira  Dwigbt  against  tlie  Elmira, 
Cortland  &,  Nortlieru  Railroad  Company. 
From  a  judgment  for  plaintiff  entered  on  an 
•order  affirming  a  judgment  entered  on  the 
report  of  a  referee,  defendant  appeals.  Re- 
versed. 

James  Armstrong,  for  appellant.  Ray- 
mond L.  Smith,  for  respondent. 

PARKER,  J.  The  judgment  awards  to 
the  plaintiff  $.303  for  damages  occasioned  by 
the  defendant's  negligence  in  setting  on  fire 
and  destroying  21  apple-trees,  2  cherry-trees, 
and  21/2  tons  of  standing  grass,  and  also  in- 
juring 7  apple-trees,  the  property  of  plain- 
tiff. The  only  question  presented  on  this  ap- 
peal is  whether  the  proper  measure  of  dam- 
ages was  adopted  on  the  trial. 

A  witness  called  by  the  plaintiff  was  ask- 
ed: "Question.  What  were  those  twenty-one 
trees  worth  a1^  the  time  they  were  killed?" 
Objection  was  made  that  the  evidence  did 
not  tend  to  prove  the  proper  measure  of 
damages,  but  the  objection  was  overruled, 
and  the  answer  was:  "Answer.  I  should 
say  they  were  worth  fifty  dollars  apiece." 
Similar  questions  were  propounded  as  to  the 
other  trees;  a  like  objection  interposed;  the 
same  ruling  made;  answers  to  the  same  ef- 
fect, except  as  to  value,  given;  and  appro- 
priate exceptions  taken.  Testimony  was  al- 
so given,  tending  to  prove  that  the  land 
burned  over  by  the  fire  was  depreciated  in 
value  $30  per  acre.  The  only  evidence  of- 
fered by  the  plaintiff,  touching  the  question 
of  damages,  was  of  the  character  already 
alluded  to. 

Fruit-trees,  like  those  which  are  the  sub- 
ject of  this  controversy,  have  little  if  any 
value  after  being  detached  from,  the  soil,  as 
the  wood  cannot  be  made  use  of  for  any 
practical  purpose;  but,  while  connected  with 
the  land,  they  have  a  producing  capacity 
which  adds  to  the  value  of  the  realty.  Neces- 
sarily the  testimony  adduced  tended  to  show, 
not  the  value  of  the  trees  severed  from  the 
freehold,  but  their  value  as  bearing  trees, 
i-onnected  with  and  depending  on  the  soil 
for  the  nourishment  essential  to  the  growth 
of  fruit.  How  much  was  the  realty,  of  which 
the  trees  formed  a  part,  damaged,  was  the 
result  aimed  at  by  the  questions  and  at- 
tempted to  be  secured  by  the  answers.  Can 
the  owner  of  an  injured  freehold  because 
the  trees  taken  or  destroyed  happen  to 
be  fruit  instead  of  timber  trees,  have  his 
damages  measured  in  that  manner?  is  the 
question  presented  now,  for  the  first  time, 
in  this  court,  so  far  as  we  liave  obsei'ved. 
The  learned  referee  followed  the  decision  in 
Whitbeck  v.  Railroad  Co.,  36  Barb.  644,  in 


which  the  proposition  is  asserted  that,  while 
fruit-trees  form  a  part  of  the  land,  the  true 
rule  is  that  if  the  thing  destroyed  has  a 
value  which  can  be  accurately  measured 
without  reference  to  the  value  of  the  soil  in 
which  it  stands,  or  out  of  which  it  grows, 
the  recovery  must  be  for  the  value  of  the 
thing  destroyed,  and  not  for  the  difference 
in  the  value  of  the  land  before  and  after 
such  destruction.  The  court  cited  no  au- 
thority for  the  conclusion  reached,  and  our 
attention  has  not  been  called  to  any  prior 
decision  justifying  its  position.  Nor  has  the 
^yhitbeck  Case  been  approved  in  this  court, 
although  cited  and  distinguished  in  Argot- 
singer  V.  Vines,  82  N,  Y.  309.  While  the 
rule  is,  undoubtedly,  as  stated  by  the  learned 
judge  in  the  Whitbeck  Case,  that  a  recovery 
may  be  had  for  the  value  of  the  thing  de- 
stroyed, where  it  has  a  value  which  may 
be  accurately  measured  without  reference 
to  the  soil  in  which  it  stands,  he  apparently 
overlooked  the  fact  that  fruit-trees  do  not 
have  such  a  value;  and  the  rule  was,  there- 
fore, as  we  think,  wrongly  applied.  Cases 
are  not  wanting  to  illustrate  a  proper  appli- 
cation of  that  rule.  Where  timber  forming 
part  of  a  forest  is  fully  grown,  the  value  of 
the  trees  taken  or  destroyed  can  be  recover- 
ed. In  nearly  all  jurisdictions,  this  is  all 
that  may  be  recovered;  and  the  reason  as- 
signed for  it  is  that  the  realty  has  not  been 
damaged,  because,  the  trees  having  been 
brought  to  maturity,  the  owner  is  advantag- 
ed by  their  being  cut  and  sold,  to  the  end 
that  the  soil  may  again  be  put  to  productive 
uses.  3  Suth.  Dam.  p.  374;  3  Sedg.  Dam. 
(8th  Ed.)  p.  45;  Single  v.  Schneider,  30  Wis. 
570;  Webster  v.  Moe,  35  Wis.  75;  Webber 
v.  Quaw,  46  W^is.  118,  49  N.  W.  830;  Hasel- 
tine  V.  Mosher,  51  Wis.  443,  8  N.  W.  273; 
Tuttlo  V.  Wilson,  52  Wis.  043,  9  N.  W.  822; 
Wooden-Ware  Co.  v.  U.  S.,  106  U.  S.  432.  1 
Sup.  Ct.  398;  Graessle  v.  Carpenter,  70  Iowa, 
166,  30  N.  W.  392;  Ward  v.  Railroad  Co.,  13 
Nev.  44;  Tilden  v.  Johnson,  52  Vt.  628; 
Adams  v.  Blodgett,  47  N.  H.  219;  Gushing  v. 
Longfellow,  26  Me.  300.  In  this  state  it  is 
settled  that  even  where  full-grown  timber 
is  cut  or  destroyed  the  damage  to  the  land 
may  also  be  recovered,  and  in  such  cases 
the  measure  of  damages  is  the  difference  in 
the  value  of  the  land  before  and  after  the 
cutting  or  destruction  complained  of.  Argot- 
singer  V.  Vines,  82  N.  Y.  308;  Van  Deusen 
v.  Young,  29  N.  Y.  36;  Easterbrook  v.  Rail- 
road Co.,  51  Barb.  94.  The  rule  is  also  ap- 
plicable to  nursery  trees  grown  for  mar- 
ket, because  they  have  a  value  for  trans- 
planting. The  soil  is  not  damaged  by  their 
removal,  and  their  market  value  necessarily 
furnishes  the  true  rule  of  damages.  3  Sedg. 
Dam.  (Sth  Ed.)  p.  48;  Birket  v.  Williams.  30 
111.  App.  451.  Coal  furnishes  another  illus- 
tration of  the  rule  making  the  value  of  the 
thing  separated  from  the  realty,  although 
once  a  part  of  it,  the  measure  of  damages, 
where  it  has  a  value  after  removal,  and  the 


388 


DAMAGES  FOR  INJURIES  TO  PKOPE'RTY. 


land  has  sustained  no  injury  because  of  it  3 
Sedg.  Dam.  (8th  Ed.)  p.  48;  3  Suth.  Dam. 
p.  374;  5  Am.  &  Eng.  Enc.  Law,  p.  36,  note 
2;  Stockbridge  Iron  Co.  v.  Cone  Iron-Works, 
102  Mass.  SO;  Coal  Co.  v.  Kogei-s,  108  Pa. 
St.  147-152;  Dougherty  v.  Chesuutt  86  Tenn. 
1,  5  S.  W.  444;  Coleman's  Appeal,  02  Pa.  St. 
2o2;  Ross  v.  Scott,  15  Lea,  479-488;  For- 
syth V.  Wells,  41  Pa.  St  291;  Chamberlain 
V.  Collinson,  45  Iowa,  429;  Morgan  v.  Pow- 
ell, 3  Q.  B.  278;  Martin  v.  Porter,  5  Mees.  & 
W.  351.  On  the  other  hand,  cases  are  not 
wanting  where  the  value  of  the  thing  de- 
tached from  the  soil  would  not  adequately 
compensate  the  owner  for  the  wrong  done, 
and  in  those  cases  a  recovery  is  permitted, 
embracing  all  the  injury  resulting  to  the 
land.  This  is  the  rule  where  growing  tim- 
ber is  cut  or  destroyetl.  Because  not  yet 
fully  developed,  the  owner  of  the  freehold 
is  deprived  of  the  advantage  which  would 
accrue  to  him  could  the  trees  remain  until 
fully  matured.  His  damage,  therefore,  nec- 
essarily extends  beyond  the  market  value  of 
the  trees  after  separation  from  the  soil,  and 
the  difference  between  the  value  of  the  land 
before  and  after  the  injury  constitutes  the 
compensation  to  which  he  is  entitled.  Long- 
fellow V.  Quimby,  33  Me.  457;  Chipman  v. 
Hibberd,  0  Cal.  163;  Wallace  v.  Goodall,  18 
N.  H.  439-456;  Hayes  v.  Railroad  Co.,  45 
Minn.  17-20,  47  N.  W.  260.  In  Wallace's 
Case,  supra,  the  court  said:  "The  value  of 
young  timber,  like  the  value  of  growing 
crops,  may  be  but  little  when  separated  from 
the  soil.  The  land,  stripped  of  its  trees  may 
be  valueless.  The  trees,  considered  as  tim- 
ber, may  from  their  youth  be  valueless;  and 
so  the  injui-y  done  to  the  plaintiff  by  the  tres- 
pass would  be  but  imperfectly  compensated 
unless  he  could  receive  a  sum  that  would  be 
equal  to  their  value  to  him  while  standing 
upon  the  soil."  The  same  rule  prevails  as  to 
shade-trees,  which,  although  fully  developed, 
may  add  a  further  value  to  the  freehold  for 
ornamental  purposes,  or  in  furnishing  shade 
for  stock.  Nixon  v.  Stillwell  (Sup.)  5  N.  Y. 
Supp.  248,  and  cases  cited  supra.     The  cur- 


rent of  authority  is  to  the  effect  that  fruit- 
trees  and  ornamental  or  growing  trees  are 
subject  to  the  same  rule.  Montgomery  v. 
Locke,  72  Cal.  75,  13  Pac.  401;  Mitchell 
V.  Billingsley,  17  Ala.  391-393;  Wallace  v. 
Goodall,  18  N.  H.  439-456;  3  Sedgw.  Dam. 
(8th  Ed.)  §  933. 

It  is  apparent  from  the  authorities  already 
cited,  as  well  as  those  following,  that  in  cases 
of  injuiy  to  real  estate  the  courts  recognize 
two  elements  of  damage:  (1)  The  value  of 
the  ti'ee  or  other  thing  taken  after  separa- 
tion from  the  freeliold,  if  it  have  any;  (2) 
the  damage  to  the  realty,  if  any,  occasioned 
by  the  removal.  Ensley  v.  Mayor,  2  Baxt. 
144;  Striegel  v.  Moore,  55  Iowa,  88,  7  N.  W. 
413;  Longfellow  v.  Quimby,  33  Me.  457; 
Foote  V.  Merrill,  54  N.  H.  490.  A  party  may 
be  content  to  accept  the  market  value  of  the 
thing  taken  when  he  is  also  entitled  to  re- 
cover for  the  injury  done  to  the  freehold. 
But  if  he  asserts  his  right  to  go  beyond  the 
value  of  the  thing  taken  or  destroyed  after 
severance  from  the  freehold,  so  as  to  secure 
compensation  for  the  damage  done  to  his 
land  because  of  it  then  the  measure  of  dam- 
ages is  the  difference  in  value  of  the  land 
before  and  after  the  injury.  In  this  case  the 
plaintiff  was  not  satisfied  with  a  recovery 
based  on  the  value  of  the  trees  destroyed, 
after  separation  from  the  realty,  of  which 
they  formed  a  part,— as  indeed  he  should  not 
have  been,  as  such  value  was  little  or  noth- 
ing,—so  he  sought  to  obtain  the  loss  occa- 
sioned to  the  land  by  reason  of  the  destruc- 
tion of  an  orchard  of  fruit-bearing  trees,, 
which  added  largely  to  its  productive  value. 
This  was  his  right,  but  the  measure  of  dam- 
ages in  such  a  case  is,  as  we  have  observed,^ 
the  difference  in  value  of  the  land  before  and 
after  the  injury;  and  as  this  rule  was  not 
followed,  but  rejected,  on  the  trial,  and  a 
metliod  of  proving  damages  adopted  not  I'ec- 
ognized  nor  permitted  by  the  courts,  the  judg- 
ment should  be  reversed.  All  concur,  except 
BRADLEY,  BROWN,  and  LANDON,  JJ.. 
dissenting. 

Judgment  reversed. 


INJURIES  TO  REAL  PROPERTY. 


389 


BEEDE  V.  LAMPREY. 

(15  Atl.  133,  64  N.  H.  510.) 

Supreme  Court  of  New   Hampshire.    Belknap. 
July  19,  1888. 

Trover  for  200  spruce  logs.  The  defendant 
was  defaulted,  with  the  right  to  be  heard  as 
to  the  assessment  of  damages.  Facts  found 
by  the  court  The  parties  own  adjoining  tim- 
ber lots  in  Moultonborough.  The  defendant, 
while  engaged  in  an  operation  on  his  own  lot, 
negligently,  but  without  malice,  cut  over  the 
line  dividing  the  lots,  and  cut  down,  trimmed, 
hauled  to,  and  deposited  in  the  lake  at  Mel- 
vin  village,  in  Tuftonborough,  and  thence 
towed  to  his  saw-mill,  the  trees  in  question, 
which  facts  constitute  the  cause  of  action. 
The  question  whether  the  measure  of  dam- 
ages is  the  value  of  the  stumpage,  or  the 
value  of  the  logs  when  cut  and  trimmed,  or 
when  deposited  in  the  lake,  or  when  deliv- 
•ered  at  the  mill,  was  reserved. 

E.  A.  &  C.  B.  Hibbard,  for  plaintiff.  Jew- 
ell &  Stone,  for  defendant. 

ALLEN,  J.  The  claim  of  the  plaintiff  to 
recover  as  damages  the  value  of  the  logs  at 
the  mill,  which  includes  the  value  added  by 
•cutting  and  transporting  them,  is  founded  up- 
on his  title  and  right  of  possession  of  the 
property  there,  and  his  right  to  treat  it  as 
<.'onverted  at  any  time  between  its  severance 
from  the  realty  and  the  commencement  of  tlie 
action.  The  plaintiff  had  the  title  to  the  logs 
and  the  right  of  possessing  them  at  the 
mill.  Whenever  and  wherever  they  may  have 
been  converted,  the  conversion  did  not  change 
the  title  so  long  as  the  property  retained  its 
identity.  The  title  could  be  changed  only  by 
a  suit  for  damages  with  judgment,  and  satis- 
faction of  that  judgment.  Smith  v.  Smith,  50 
N.  H.  212,  219;  Dearth  v.  Spencer,  52  N.  H. 
213.  The  plaintiff  might  have  recovered  the 
logs  themselves  at  the  mill,  or  wherever  he 
•could  have  found  them,  and  so  availed  him- 
self of  their  value  there,  by  replevin,  or  by 
any  form  of  action  in  which  the  property  in 
specie,  and  not  pecuniary  damages,  are  sought. 
But  in  such  a  case,  if  the  claimant  makes  a 
title,  no  question  of  damages  or  compensation 
for  loss  arises.  He  recovers  his  own  in  the 
form  and  at  the  time  and  place  in  which  he 
finds  it.  In  trespass  quare  clausum,  with  an 
averment  of  taking  and  carrying  away  trees, 
the  plaintiff  may  recover  for  the  whole  in- 
jury to  the  land,  including  the  damage  for 
prematurely  cutting  the  trees,  and  for  the  loss 
•of  the  trees  themselves,  but  nothing  for  the 
value  added  by  the  labor  of  cutting  and  trans- 
poa-ting  them.  Wallace  v.  Goodall,  18  N.  H. 
4.56;  Foote  v.  Merrill,  54  N.  H.  490.  Trover 
cannot  be  maintained  for  any  injury  to  the 
realty,  but  only  for  the  conversion  of  chattels ; 
and  in  this  case  the  plaintiff  is  limited  in  his 
recovery  to  the  loss  of  the  trees;  that  is,  his 
loss  by  the  defendant's  converting  them  by 


their  severance  from  the  land.  The  usual  rule 
of  damages  in  actions  of  trover  is  compensa- 
tion to  the  owner  for  the  loss  of  his  property 
occasioned  by  its  conversion;  and  where  the 
conversion  is  complete,  and  results  in  an  en- 
tire appropriation  of  the  property  by  the 
wrong-doer,  the  loss  is  generally  measured  by 
the  value  of  the  property  converted  with  in- 
terest to  the  time  of  trial.  Hovey  v.  Grant, 
52  N.  H.  569;  Gove  v.  Watson,  61  N.  H.  136. 
The  defendant  converted  the  logs  by  cutting 
and  severing  the  trees  from  the  land,  and,  the 
conversion  being  complete  by  that  wrongful 
act,  their  value  there  represents  the  plaintiff's 
loss.  His  loss  is  no  greater  by  reason  of  the 
value  added  by  the  labor  of  cutting  and  trans- 
portation to  the  mill.  It  does  not  appear  that 
the  logs  were  of  special  or  exceptional  value 
to  the  plaintiff  upon  the  land  from  which  they 
were  taken,  nor  that  he  had  a  special  use  for 
them  other  than  obtaining  their  value  by  a 
sale,  nor  that  the  market  price  had  risen  aft- 
er their  conversion.  If,  in  estimating  the 
damages,  the  value  at  the  mill,  increased  by 
the  cost  of  cutting  and  transportation,  is  to 
be  taken  as  the  criterion,  the  plaintiff  will  re- 
ceive more  than  compensation  for  his  loss. 
With  such  a  rule  of  damages,  if,  besides  the 
defendant,  another  trespasser  had  cut  logs  of 
an  equal  amount  upon  the  same  lot,  and  had 
hauled  them  to  the  lake  shore,  and  a  third  had 
simply  cut  and  severed  the  trees  from  the 
land,  and  sold  them  there,  and  suits  for  their 
conversion  had  been  brought  against  each 
one.  the  sums  recovered  would  differ  by  the 
cost  of  transporting  the  logs  to  the  place  of 
the  alleged  conversion,  while  the  loss  to  the 
plaintiff  would  be  the  same  in  each  of  the 
three  cases.  The  injustice  of  such  an  appli- 
cation of  the  rule  of  damages  is  apparent 
from  the  unequal  results.  In  Foote  v.  Mer- 
rill, supra,  which  was  trespass  quare  claus- 
um, and  for  cutting  and  removing  trees,  it 
was  decided  that  the  plaintiff  could  recover 
for  the  whole  injury  to  the  laud,  including  the 
value  of  the  trees  there,  but  not  any  increase 
in  value  made  by  the  cost  of  cutting  and  tak- 
ing them  away.  In  the  opinion  it  is  said, 
(Hibbard,  J.:)  "If  the  owner  of  timber  cut 
upon  his  land  by  a  trespasser  gets  posses- 
sion of  it  increased  in  value,  he  has  the  bene- 
fit of  the  increased  value.  The  law  neither 
divests  him  of  his  propertj-,  nor  requires  him 
to  pay  for  improvements  made  without  his 
authority.  Perhaps,  in  trover,  and,  possibly, 
in  trespass  de  bonis  asportatis.  he  may  be  en- 
titled to  the  same  benefit."  This  dictum,  not 
being  any  part  of,  nor  necessary  to,  the  de- 
cision of  that  case,  and  given  in  language  ex- 
l)ressive  of  doubt,  cannot  be  invoked  as  a 
precedent  decisive  of  this  case.  When  tres- 
pass de  bonis  asportatis  is  coupled  with  tres- 
l^ass  Quare  clausum.  either  as  a  separate  count 
or  as  an  averment  in  aggravation  of  dam- 
ages, as  in  Foote  v.  Merrill,  the  increase  in 
damages  bv  reason  of  such  averment  and 
proof  of  it  is  the  value  of  the  chattels  taken 


;wo 


DAMA(iES  FOK  I.N.I UlUES  TO  PROPERTY. 


and  converted;  and  in  such  a  case  is  the  same 
as  tlie  wliole  damages  would  have  been  in  an 
action  of  tresnass  de  bonis.  Smith  v.  Smith, 
50  N.  H.  212,  210.  Had  the  plaintiff  in  Foote 
V.  Merrill,  sued  in  trespass  for  taking  and 
carrying  away  the  trees  merely,  he  would 
have  recovered  their  value  upon  the  lot  at  the 
time  of  the  taking,  allowing  nothing  for  the 
expense  of  cutting  and  removing  them;  and 
no  good  reason  appears  why  the  same  rule  of 
damages  should  not  prevail  in  trover  as  in 
trespass  de  bonis  asportatis.  The  loss  to  the 
plaintiff  from  the  taking  and  carrying  away 
of  his  property  is,  ordinarily,  the  same  as  the 
conversion  of  it  by  complete  appropriation, 
and  the  nde  of  compensation  for  the  loss 
gives  him  the  value  of  his  property  at  the 
time  and  place  of  taking  or  conversion,  and 
interest  from  that  time  for  its  detention. 

The  English  cases  upon  the  subject  give  as 
the  rule  of  damages,  when  the  conversion  and 
appropriation  of  the  property  are  by  an  inno- 
cent mistake,  and  bona  fide,  or  where  there 
is  a  real  disnute  as  to  the  title,  the  value  of 
the  proiK-rty  in  place  uiwn  the  land,   allow- 
ing nothing  for  enhancement  of  value  by  la- 
bor in  its  removal  and   improvement.     But 
when  the  conversion   is  by  fraud  or  willful 
trespass,  the  full  value  at  time  of  demand 
and    refusal  is    given.     Martin  v.  Porter,  5 
Mees.  &  W.  351;    Morgan  v.  Powell,  3  Adol. 
&  E.  (N.  S.)  278;  Wood  v.  Morewood,  Id.  440, 
note;  Wild  v.  Holt.  9  Mees.  &  W.  672;   In  re 
United  Collieries  Co.,  L.  R.  15  Eq.  46.    The 
early  New  York  cases  give  the  full  value  at 
the  time  of  conversion,  including  any  value 
added  by  labor  and  change  in  manufacturing. 
Betts  v.  Lee,  5  Johns.  348;    Curtis  v.  Groat. 
6  Johns.  16S;   Babcock  v.  Gill,  10  Johns.  287; 
Brown  v.  Sax,  7  Cow.  95;  Baker  v.  Wheeler, 
8  Wend.  505.     In  these  cases  the  convei-sion 
is  treated  as  tortious,  and  the  same  as  if 
made  by  willful  trespass.     In  later  cases  a 
distinction  is  made  between  a  willful  taking 
and  conversion,  and  the  rale  of  just  compen- 
sation is  upheld  in  case  of  the  conversion  of 
trees  at  least,  and  their  value  upon  the  land, 
is  given  as  damages  when   the  conversion 
does  not  result  from  willful  trespass.     Whit- 
beck  v.  Railroad  Co.,  36  Barb.  644;    Spicer  v. 
Waters,  65  Barb.  227.     The  Illinois  decisions 
make  no  distinction  between  cases  of  willful 
trespass  and  those  of  conversion  by  mistake 
or  inadvertence,  and  include  in  damages  all 
enhancement  in  value,  from  any  cause,  be- 
fore suit  is  brought.     Robertson  v.  Jones,  71 
111.  405;   Coal  Co.  v.  Long,  81  111.  359;    Rail- 
road Co.  v.  Ogle,  82  111.  627.     In  Maine  the 
increased   value   added   by  cutting   and   re- 
moving the   timber   is  not   included   in  the 
damages,  although  the  conversion  be  by  will- 
ful trespass.     Cushing  v.  Longfellow,  26  Me. 
306;    ]Moody  v.  Whitney,  38  Me.  174.     And 
the  same  rule  seems  to  govern  in  Massachu- 
setts, (Iron  Co.  v.  Iron-Works,  102  Mass.  80, 
86,)  and  did  in  Wiscousin  (Weymouth  v.  Rail- 
way Co.,  17  Wis.  567;   Single  v.  Schneider,  30 


Wis.  570)  until  the  legislature  of  that  state,, 
in  1873,  enacted  a  statute  providing  that  the 
rule  of  damages,  in  the  case  of  one  wrong- 
fully cutting  and  converting  timber  on  the 
land  of  another,  should  be  the  highest  mar- 
ket value  of  the  property  up  to  the  time  of 
trial,   in    whatever   state  it    might   be   put. 
Webster  v.  Moe,  35  Wis.  75;   Ingram  v.  Ran- 
kiu,  47  Wis.  406,  2  N.  W.  755.     The  weight 
of  authority,  however,  in  this  country  is  in 
favor  of  the  rule  which  gives  compensation 
for  the  loss;    that  is,  the  value  of  the  prop- 
erty at  the  time  and  place   of   conversion, 
with    interest    after,    aUowing    nothing    for 
value  subsequently  added  by  the  defendant, 
when  the  convei-sion  does  not  proceed  from 
willful  trespass,  but  from  the  wrong-doer's 
mistake  or  from  his  honest  belief  of  owner- 
ship in  the  property,  and  there  are  no  cir- 
cumstances showing  a  special  and  peculiar 
value  to  the  owner  or  a  contemplated  special 
use   of   the    property    by   him.     Forsyth   v. 
WeUs,  41  Pa.  St.  291;    Herdic  v.  Young,  55- 
Pa.  St.  176;  Wooley  v.  Carter,  7  N.  J.  Law, 
85;   Coal  Co.  v.  McMillan,  49  Md.  549;   Coal 
Co.  V.  Cox,  39  Md.  1;   Bennett  v.  Thompson, 
13  Ired.  146;    Railway  Co.  v.  Hutchins,  32 
Ohio  St.  571;   Wetherbee  v.  Green,  22  Mich. 
311;  Winchester  v.  Craig,  33  Mich.  205;  Nes- 
bitt  V.  Lumber  Co.,  21  Minn.  491;    Ellis  v. 
Wire,  33  Ind.  127;    Ward  v.  Wood  Co.,  13 
Nev.  44;   Waters  v.  Stevenson,  Id.  177;   Gol- 
ler  V.  Fett,  30  Cal.  481;   Gray  v.  Parker,  3& 
Mo.  160,  166;    Wooden  Ware  Co.  v.  U.   S., 
106  U.   S.  432,  434,  1  Sup.  Ct.  398;    Sedgw. 
Dam.  (5th  Ed.)  571,  572;   Cooley,  Torts,  457^ 
458,  note.     In  cases  of  conversion  by  willful 
act  or  by   fraud,   the   value   added   by   the 
wrong-doer,  after   conversion,  is   sometimes 
given  as  exemplary  or  vindictive  damages, 
or  because  the  defendant  is  precluded  from 
showing  an  increase  in  value  by   his  own 
wrong,  and  from  claiming  a  coi-responding^ 
reduction  of   damages.     The   contention   of 
the  plaintiff  that  he  is   entitled   to  recover 
the  value  of  the  logs  increased  by  the  ex- 
pense of  cutting  and  removal  to  the  mill  in 
Wolfborough,  because,  as  the  case  finds,  the 
defendant's  acts  constituting  the  conversion 
were  negligent,  cannot  be  sustained  on  any 
ground  warranting  vindictive  damages.     The 
cutting  and  taking  the  logs  was  not  willful 
trespass;    nor   does  it  appear  that   the   de- 
fendant's want  of  reasonable  care  amounted 
to  a  fraud.     No  malice  is  shown,  nor  were 
there  other  facts  of  outrage  upon  which  such 
damages  could  be  predicated.     No  part  of 
the  damages  in  dispute  is  found  as  exem- 
plary, and  the  plaintiff  cannot  be  permitted 
to  assign  as  damages  to  his  feelings  a  mere 
value  added  to  the  property  by  the  defend- 
ant after  the  completion  of  the  tort,  nor  take 
as  a  benefit  that  which  is  outside  of  compen- 
sation for  the  wrong.     Fay  v.  Parker,  53  N. 
H.  342;  Bixby  v.  Dunlap,  56  N.  H.  456;   Kim- 
ball V.  Holmes,  60  N.  H.  163.     The  damages 
must  be  according  to  the  usual  rule  in  trover,. 


INJURIES  TO  REAL  PROPERTY. 


391 


which  is  the  value  of  the  property  at  the 
lime  of  conversion,  and  interest  after.  The 
severance  of  the  trees  from  the  land,  and 
their  convei"sion  from  real  to  personal  prop- 
erty, was  in  law  a  conversion  of  the  proper- 
ty to  the  defendant's  use.     The  value  of  the 


trees,  immediately  upon  their  becoming  chat-     curred. 


tels,— that  is,  as  soon  as  felled,— which  is 
found  to  be  $1.50  per  thousand  feet,  with  in- 
terest from  that  time,  the  plaintiff  is  entitled 
to  recover.     Judgment  for  the  plaintiff. 

SMITH,  J.,  did  not  sit     The  others  con- 


:i)2 


DAMAGES  FOR  INJI  IMES  TO  PROPERTY. 


GASKINS  T.  DAVIS. 

(20  S.  E.  188,  115  N.  C.  85.) 

Supreme   CJourt  of  North  Carolina.     Oct   16, 
1894. 

Appeal  from  superior  court,  Craven  county; 
Byniim,  Judge. 

Action  of  trespass  by  Patsy  Ann  Gaslcins 
against  Henry  C.  Davis.  Judgment  was  reur 
dered  for  defendant,  and  plaintiff  appeals. 
Reversed. 

W.  W.  Clark,  for  appellant.  F.  M.  Sim- 
mons and  P.  M.  Pearsall,  for  appellee. 

AVERY,  J.  The  plaintiff's  complaint  is  in 
the  natiu*e  of  a  declaration  for  ti-espass  in 
the  entry  by  the  defendant  upon  her  land, 
after  being  forbidden,  and  cutting,  carrying 
away,  and  converting  to  his  own  use  valuable 
timber  that  was  growing  thereon,  to  her 
damage  $500.  The  logs,  after  being  severed, 
were  ti'ansported  to  Newbern  in  two  lots,  one 
of  which  lots  was  seized  by  plaintiff  after 
reaching  that  city,  where  it  was  much  more 
valuable,  than  at  the  stump,  and  was  sold 
by  her  for  the  sum  of  $112.  The  other  lot 
was  converted  into  boards  and  sold  by  the 
defendant.  The  defendant,  for  a  second  de- 
fense, sets  up  by  way  of  counterclaim  the 
seizure  of  the  logs  by  the  plaintiff;  and 
though  the  counterclaim  may  be  a  defective 
statement  of  the  defendant's  cause  of  ac- 
tion, in  that  it  fails  to  aver  an  unlawful  tak- 
ing, the  defect  is  cured,  if  the  counterclaim 
can  be  maintained  at  all,  by  the  reply,  which, 
by  way  of  aider,  raises  the  question  of  the 
rightfulness  of  the  seizure.  The  well-estab- 
lished rule  is  that  in  such  cases  the  injured 
party  is  entitled  to  recover  of  the  trespasser 
the  value  of  the  timber  where  it  was  first 
severed  from  the  land  and  became  a  chattel 
(Bennett  v.  Thompson,  13  Irod.  146),  together 
with  adequate  damage  for  any  injury  dune  to 
the  land  in  removing  it  therefrom.  As  long 
as  the  timber  taken  was  not  changed  into  a 
different  species,  as  by  sawing  into  boards, 
the  owner  of  the  land  retained  her  right  of 
property  in  the  specific  logs  as  fully  as  when 
by  severance  it  became  her  chattel,  instead 
of  a  part  of  the  realty  belonging  to  her.  Pot- 
ter V.  Mardre,  74  N.  C.  40.  The  value  of  the 
material  taken  indicates  the  extent  of  the 
loss,  where  there  are  no  circumstances  of  ag- 
gravation or  willfulness  shown,  and  is  the 
usual  measure  of  damages.  Where  the  ti'es- 
passcr  has  converted  tlie  property  taken  into 
a  different  species,  under  the  rule  of  the 
civil  law  which  we  have  adopted,  the  article, 
in  its  altered  state,  cannot  be  recovered,  but 
only  damages  for  the  wrongful  talcing  and 
conversion,  when  the  change  in  its  form  is 
"made  by  one  who  is  acting  in  good  faith,  and 
under  an  honest  belief  that  tbe  title  was  in 
him."  In  Potter  v.  Mardre,  supra,  Rodman, 
J.,  delivering  the  opinion  of  the  court,  says: 
"The  principle  of  equity  [applied  in  that  case] 
is  supported  by  the  analogy  of  the  rule  estab- 


lished in  this  state  by  the  decisions  which 
hold  that  a  vendee  of  land  by  a  parol  con- 
tract of  sale,  who  takes  possession  and  makes 
Improvements,  and  Is  afterwards  ejected  by 
the  vendor,  may  recover  the  value  of  his  im- 
provements. All)ea  V.  Griffin,  2  Dev.  &  B. 
Eq.  9.  So  if  one  who  has  purchased  land 
from  another,  not  having  title,  enters  and  im- 
proves, behoving  his  title  good,  and  is  ejected 
by  the  rightful  owner,  he  is  entitled  to  com- 
pensation. In  both  cases  one  who  is  morally 
innocent  has  confused  his  property  with  that 
of  another,  and  he  is  held  entitled  to  sep- 
arate it  in  the  only  way  It  can  be  done,  viz. 
by  being  allowed  the  value  of  his  improve- 
ments in  the  raw  material."  The  judge  laid 
down  correctly  the  rule  as  to  tlie  damage 
that  the  plaintiff  was  entitled  to  recover  of 
the  defendant  for  the  original  trespass,— the 
value  of  the  logs  when  severed  at  the  stump, 
and  adequate  damage  for  injury  done  to  the 
land  in  removing  them.  Potter  v.  Mardre, 
supra;  5  Am.  &  Eng.  Enc.  Law,  p.  86;  Ross 
V.  Scott,  15  Lea,  479.  The  chaa-acter  of  the 
logs  had  not  been  changed  by  cutting  and 
transporting  to  Newbern,  but  the  value  had 
probably  been  greatly  enhanced.  The  ap- 
proved rule,  where  the  plaintiff  is  asking 
damage  for  trespass,  seems  to  be  that  the 
owner  is  entitled  to  recover  the  value  of 
the  logs  when  and  where  they  were  severed, 
and  without  abatement  for  the  cost  of  sever- 
ance. Coal  Co.  V.  MclNIillan,  49  Md.  549. 
But,  if  he  prefers  to  follow  and  claim  the 
timber  removed,  he  is  entitled  to  do  so,  as 
long  as  the  species  remains  imchangcd.  The 
plaintiff  was  entitled  to  recover  In  a  claim 
and  delivery  proceeding  the  logs  that  she 
seems  to  have  acquired  peaceful  possession 
of  without  action.  Was  the  defendant  en- 
titled, by  way  of  recoupment,  to  the  benefit 
of  the  enhanced  value  imparted  to  the  prop- 
erty by  transporting  it  to  max'ket?  Had  they 
been  sawed  up  in  planks,  and  used  to  con- 
sti-uct  a  boat,  the  plaintiff  would  not  have 
been  oititled  to  recover  the  boat,  or  the  ma- 
terial used  in  its  consti'uction.  But  if  the 
plaintiff  had  then  unlawfully  seized  and  lost 
or  destroyed  the  boat,  and  the  defendant  bar! 
been  thereby  driven  to  an  action  to  recover 
compensation  for  his  loss,  he  might  have  re- 
covered the  value  of  the  boat,  together  with 
the  damage,  if  any,  done  to  his  land  In  re- 
moving it  therefrom;  but  the  present  plain- 
tiff would  have  been  entitled  "to  deduct, 
by  way  of  counterclaim,  the  value  of  the 
timber  which  was  manufactiu'ed  into  the 
boat,  just  after  it  was  felled  and  converted 
Into  a  chattel."  Potter  v.  Mardre,  supra.  It 
seems  to  have  been  conceded  that  the  defend- 
ant cut  and  carried  away  tlie  logs  under  the 
honest  but  mistaken  belief  that  the  land  upon 
which  they  were  growing  was  his  own. 
Where  a  trespasser  acts  in  good  faith  under 
a  claim  of  right  in  removing  timber,  though 
he  may  not  be  allowed  compensation  for  the 
cost  of  converting  the  tree  into  a  chattel,  may 
he  not  recoup,  in  analogy  to  the  equitalile  doc- 


INJURIES  TO  REAL  PROPERTY. 


398 


trine  of  betterments,  for  additioiial  value  im- 
parted to  the  property  after  its  conversion  in- 
to a  chattel,  and  before  it  is  changed  into  a 
different  species?  The  judge  below,  in  allow- 
ing the  defendant,  by  way  of  recoupment, 
the  benefit  of  tJie  enhanced  value  imparted  to 
the  logs  by  removal  from  the  stump  to  the 
Newbern  market,  seems  to  have  acted  upon 
the  idea  that  tlie  defendant,  by  reason  of  his 
good  faith,  was  entitled  to  the  benefit  of  the 
improvement  in  value  imparted  by  his  labor 
and  expense.  In  Ross  v.  Scott,  supra,  where 
it  appeared  that  the  defendant  had  entered 
upon  land  to  mine  for  coal,  and,  under  the 
honest  but  erroneous  belief  that  he  was  the 
owner,  had  built  houses  thereon.  It  was  held 
that  the  plaintiff  might  recover  the  cost  of 
the  coal  in  situ,  subject  to  reduction  by  an 
allowance  for  permanent  improvements  put 
upon  the  land.  See,  also.  In  re  United 
Merthyr  Collieries  Co.,  L.  R.  15  Eq.  46;  Hil- 
ton V,  Woods,  L.  R.  4  Eq.  432;  Forsyth  v. 
WeUs,  41  Pa.  St.  291.  The  weight  of  authori- 
ty, it  must  be  conceded,  sustains  the  rule 
that,  where  the  action  is  brought  for  damages 
for  logs  cut  and  removed  in  the  honest  belief 
on  the  part  of  the  trespasser  that  he  had  title 
to  them,  the  measure  of  damages  is  the  value 
in  the  woods  from  which  they  were  taken, 
with  the  amount  of  injiu-y  incident  to  re- 
moval, not  at  the  mill  where  tliey  were  car- 
ried to  he  sawed.  Tilden  v.  Johnson,  52  Vt. 
C2S,  36  Am.  Rep.  769,  and  note,  770;  Herdic 
V.  Young,  55  Pa.  St.  176;  Hill  v.  Canfiold.  56 
Pa.  St.  454;  Moody  v.  Whitney.  38  Me.  174; 
Gushing  v.  Longfellow,  26  Me.  306;  Goller  v. 
Fett,  30  Cal.  482;  Foote  v.  Merrill,  54  N.  H. 
496;  Railway  Co.  v.  Hutchins,  32  Ohio  St  571. 
In  the  absence  of  any  evidence  that  would 
justify  the  assessment  of  vindictive  damages, 
there  is  only  one  exception  to  the  rule,  as  we 
have  stated  it,  and  that  is  where  the  trees 
destroyed  are  not  the  ordinary  timber  of  the 
forest,  but  are  peculiarly  valuable  for  orna- 
ment, or  as  shade  trees. 

It  being  settled  in  this  state  that  the  right 
to  the  specific  chattel,  which  vests  on  sever- 
ance from  the  land  in  the  owner  of  the  soil, 
remains  in  him  till  the  species  is  changed, 
we  are  constrained  to  go  further,  though 
it  may  sometimes  subject  a  mistaken  tres- 
passer to  hardship,  and  hold  that  the  true 
owner  is  entitled  to  regain  ix)ssession  of  a 
log  cut  and  removed  from  his  land,  either 
by  recapture  or  by  any  other  remedy  pro- 
vided by  law,  whatever  additional  value  may 
have  been  imparted  to  it  by  transporting  it 
to  a  better  market,  or  by  any  improvements 
in  its  condition  short  of  an  actual  alteration 
of  species.  In  Weymouth  v.  Railroad  Co., 
17  Wis.  550,  the  court  say:  "In  determining 
the  question  of  recaption  the  law  must  either 
allow  the  owner  to  retake  the  property,  or  it 
must  hold  that  he  has  lost  his  right  by  the 
wrongful  act  of  another.     If  retaken  at  all, 


it  must  be  taken  as  it 'is  found,  though  en- 
hanced in  value  by  the  trespasser.  It  cannot 
be  returned  to  its  original  condition.  The 
law,  therefore,  being  obliged  to  say  either 
that  the  wrongdoer  shall  lose  his  labor,  or 
the  owner  shall  lose  tlie  right  to  take  the 
property  wherever  he  may  find  it,  very  prop- 
erly decides  in  favor  of  the  latter.  But  where 
the  owner  voluntarily  waives  the  right  to  re- 
claim the  property  itself,  and  sues  for  dam- 
ages, the  difllculty  of  separating  the  en- 
hanced value  from  the  original  value  no  long- 
er exists.  It  is  then  entirely  practicalile  to 
give  the  owner  the  entire  value  that  was 
taken  from  him,  which  it  seems  that  natm-al 
justice  requires,  without  adding  to  it  such 
value  as  tlie  property  may  have  afterwards 
acquired  from  the  labor  of  the  defendant.  In 
the  case  of  recaption  the  law  does  not  allow 
it,  because  it  is  absolute  justice  that  the  orig- 
inal owner  should  have  il\e  additional  value. 
But  where  the  wrongdoer  has  by  his  own 
act  created  a  state  of  facts,  when  either  he 
or  the  owner  must  lose,  then  the  law  says 
the  wrongdoer  shall  lose."  Id.,  26  Am.  Rep. 
529,  note.  When,  therefore,  tlie  plaintiff  re- 
captured the  one  lot  of  logs  that  had  been 
enhanced  in  value  by  transportation  from 
the  stump  to  the  city  market,  she  but  exer- 
cised the  right  given  her  by  law  to  peace- 
fully regain  possession  of  her  own  chattels 
wherever  found.  She  was  guilty  of  no  in- 
fringement of  tlie  rights  of  the  defendant,  for 
which  an  action  would  lie.  It  is  familiar 
learning  that  a  defendant  can  only  maintain 
successfully  a  counterclaim  when  it  is  of 
such  a  nature  that  he  could  recover  upon  it 
in  a  separate  suit  brought  against  the  plain- 
tiff. Tlie  defendant  could  not  recover,  there- 
fore, either  in  a  distinct  action  for  the  taking 
of  the  logs,  or  by  Avay  of  counterclaim. 
When  the  plaintiff  recaptured  tlie  logs  she 
was  guilty  of  no  wrong,  and  the  question  of 
title  to  the  property  so  rightfully  taken  was 
eliminated  from  all  possible  future  contro- 
versy. Her  remedy  by  act  of  the  law  re- 
mained as  to  so  many  of  the  logs  as  she  had 
not  regained  possession  of  by  her  own  act. 
After  she  had  recaptured  one  lot  the  property 
in  them  in  their  altered  state,  and  at  the  new 
situs,  revested  in  her,  with  the  absolute  jus 
disponendi,  as  in  the  case  of  her  other  per- 
sonal property.  Nothing  remained  to  be  ad- 
justed in  the  courts,  except  her  claim  for 
damages  for  the  taking  of  the  other  lot  and 
the  injury  to  the  land,  if  any,  incident  to  the 
removal  of  both  lots.  It  was  eiTor,  there- 
fore, to  instruct  the  jury  tliat  the  enhanced 
value  imparted  by  removal  to  the  one  lot 
of  logs  might  be  allowed  the  defendant  as  a 
counterclaim,  so  as  to  set  off  the  damages 
assessed  for  injury  to  the  land  and  for  the 
value  at  the  stump  of  the  other  lot,  and  the 
plaintiff  is  entitled  to  a  new  ti'ial. 
New  trial. 


394 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


OMAHA  &  GRANT  SMELTING  &  RE- 
FINING CO.  et  al.  V.  TABOR  et  al. 

(21  Pac.  925,  13  Colo.  41.) 

Supreme  Court  of  Colorado.    May  28,  1889. 

Commissioners'  decision.    Appeal  from  dis- 
trict court,  Lake  county. 

Two  suits,  in  the  nature  of  actions  in  tro- 
ver, brought  by  Horace  A.  W.  Tabor,  David 
H.  Molfatt,  Jacob  J.  B.  Du  Bois,  James  G. 
Blaine,  and  Jerome  B.  Chaffee, — the  lirst, 
against  Eddy,  James,  and  Grant;  the  second, 
against  tiie  Omaha  &  Grant  Smelting  &  lie- 
fining  Company,  in  whicii  it  appears  the  bus- 
iness of  the  former  defendants  was  merged. 
Plaintiffs  alleged  that  they,  with  Charles  E. 
Rider,  were  the  owners  and  in  the  possession 
of  the  mine  in  the  county  of  Lalte  known  as 
the  "Maid  of  Erin  Lode,"  and  as  survey 
"Lot  No.  568,"  and  "Mineral  Entry  No. 
384,"  from  the  1st  day  of  January,  1882,  un- 
til the  11th  of  October,  lb83.  That  between 
the  3d  of  July  and  the  31st  of  August,  1883, 
Thomas  Ovens,  Stanley  G.  Wight,  and  otli- 
ers  wronufuTly  entered  upon  tlie  property, 
and  mined  and  look  out  a  large  quantity  of 
valuable  ore,  and  sold  the  same  to  tiie defend- 
ants, who  converted  it  to  their  own  use;  and 
that  the  ore  so  mined,  sold,  and  purchased 
by  the  deieiulanls  was  of  the  value  of  S25,- 
OUO  over  and  above  the  eost  of  mining,  rais- 
ing, hauling,  and  treating.  Tluit  about  the 
9tii  day  of  March,  188U,  the  plaintiff  Jerome 
B.  Chaffee  died,  and  David  11.  Molfatt  be- 
came executor.  That  on  or  about  the  20th 
oi  Novemi  er,  1885,  Charles  E.  Rider  sold  and 
transferred  to  T  -vid  H.  Molfatt  his  cause  or 
causes  of  action  in  the  premises,  and  that  the 
delendants  mixed  and  confused  tJie  ores  of 
plaintiffs  with  other  ores,  destroyed  their 
identity,  and  sold  and  converted  them  into 
money.  Plaintitls  pray  judgment  for  $25,- 
OUU,  and  interest.  Defendants  answer,  de- 
nying all  the  allegations  in  the  complaint, 
except  the  allegation  of  sale  and  assignment 
by  Rider  to  Moffatt,  in  regard  to  which  they 
say  they  are  not  informed,  and  the  allegation 
that  defendant  had  not  paid  plaintiffs  for  the 
ore,  which  is  admitted.  For  further  defense, 
defendants  allei^e  that,  at  the  time  of  the  al- 
leged entry  and  wrongful  taking  of  or^,  Stan- 
ley G.  Wight,  Jervis  Joslin,  Chester  B. 
Bullock,    Loyd    Park,  A.    \V.   Rucker,  and 

Rucker  were  the  owners  and  in  the 

possession  of  the  Vanderbilfc  lode  mining 
claim,  which  coullicted  with  and  embraced  a 
part  of  the  Maid  of  Erin  claim.  That  the 
territory  in  contlict  was  in  litigation  between 
the  respective  parties.  That  several  actions 
at  law  and  equity  concerning  it  were  pend- 
ing and  uniletermined.  That  at  the  dates 
mentioned  in  tiie  complaint  Wight  and  oth- 
ers were  mining  and  taking  ores  from  the 
Vanderbilt  claim,  and  from  that  part  in  con- 
flict with  the  Maid  of  Erin.  That  these  facts 
were  unknown  to  defendants;  and  that  the 
ore  so  laKen,  or  a  part  of  it.  was  sold  and 
delivered  to   the   defendant  at  its  smelting 


works  in  Leadville,  as  ore  from  the  Vander- 
bilt lode,  and  purchased  by  defendants  in 
regular  course  of  business.  That  long  after 
the  purchase  of  the  ore  by  defendants  they 
were  informed  that  the  ore  was  taken  from 
tlie  ground  in  dispute.  Defendants  further 
say,  in  answer,  that  some  time  during  Au- 
gust or  September,  1883,  they  did  purchase 
ores  belonging  to  Wight,  Rucker,  and  others 
which  were  known  as  and  called  "Vander- 
bilt Ores,"  which  as  defendants  believe  were 
taken  from  the  Vand^'rbilt  claim,  of  which 
the  said  Wight  and  others  were  the  owners 
and  claimants,  and  in  possession  under  claim 
and  color  of  t.tle.  Plaintiffs,  in  reply,  deny 
that  Wight  and  others  were  the  owners  of 
any  part  of  the  Vanderbilt  claim  in  conflict 
with  the  Maid  of  Erin  claim;  deny  that  any 
part  of  the  Vanderbilt  claim  conflicted;  and 
allege  that  prmr  to  the  date  mentioned  the- 
government  of  the  United  States  had  sold  to- 
the  plaintiifs  Tabor  and  Du  Bois  the  Maid  of 
Erin  claim,  and  given  a  receiver's  receipt  for 
the  same  from  the  land-office  at  Leadville; 
and  aver  that  Ovens  and  Wight  wrongfully 
went  into  a  portion  of  the  ground  deseribed 
in  the  complaint  while  plaintiffs  were  in  pos- 
session of  it.  ;ind  mined  and  carried  away  the 
ore,  whicii  was  the  same  ore  mentioned  in 
defendants'  answer;  deny  that  Ovens  and 
Wighthad  any  title  to  the  ground  from  which 
ore  was  taken,  and  aver  that  all  the  posses- 
sion they  had  was  wrongful  and  illegal,  and 
tem[iorary,  for  the  purpose  of  obtaining  the 
ore;  that' the  entry  of  Ovens  and  Wight  was 
through  a  shaft  on  the  Big  Chief  claim,  not 
owned  by  either  party  to  the  controversy, 
and  that  from  such  shaft  they  worked  over 
the  boundary  into  plaintiffs'  property;  deny 
that  defendants  did  not  know  that  Ovens  and 
Wight  were  taking  the  ore  from  plaintiffs' 
ground;  and  aver  full  notice  and  knowledge 
of  the  fact.  The  two  suits  were  consolidated 
for  the  purpose  of  the  tr;al.  The  venue  was 
changed  to  Lake  county;  the  cause  tried  be- 
fore the  court  and  a  jury,  April  15,  1888;- 
verdict  for  plaintiffs  against  Eddy,  James, 
and  Grant  for  $3,990.45,  and  against  the 
Omaha  &  Grant  Smelting  &  Retining  Com- 
panv  for  $14,397.67.  There  are  61  assign- 
ments of  error.  Of  these,  38  are  to  the  rul- 
ing of  the  court  in  admitting  and  rejecting 
testimony;  22  (being  those  from  39  to  60,. 
both  inclusive)  are  to  the  rulings  of  the  court 
in  giving  and  refusing  theinstructions  asked; 
the  61st  and  last  is  to  the  refusal  of  the 
court  to  grant  a  new  trial.  The  other  facts 
necessary  to  a  proper  understanding  of  the 
case  necessarily  appear  in  the  opinion. 

Patterson  &  Thomas,  for  appellant.  Wol- 
cott  tt  Vaile,  J.  B.  Biascll,  and  L.  C.  Rock- 
well, for  appellees. 

REED,  C,  (after  stating  the  facts  ay 
above.)  The  lirst  15  and  the  18th  errors  as- 
signed are  to  the  ruling  of  the  court  on  the 
cross-examination  of  plaintiffs'  witness  0. 11. 
Harker.  Counsel  in  their  argument  for  ap- 
pellants   say:     "The   defendants   sought  to 


INJUKIE.S  TO   REAL   PKOI'EUTY. 


S9r 


show  by  cross-examination  of  the  plaintiffs' 
witnesses  that  at  the  time  of  the  commission 
of  the  trespasses  complained  of,  the  Maid  of 
Erin  mine  was  owned  by  the  Henriett  Min- 
ing &  Smelting  Company  and  J.  B.  Du  Bois, 
and  that  the  original  trespassers  were  en- 
joined at  tlie  suit  of  these  parties  by  proper 
proceedings  instituted  for  that  purpose,  but 
they  were  not  permitted  to  do  so."  It  ap- 
pears tiiat  counsel  for  appellants  (defendants 
Itelow)  upon  the  trial  attempted,  on  cross- 
examination  of  the  witness,  to  show  that  the 
plaintitt  Du  I3ois  owned  one-half  of  the  Maid 
of  Erin  property,  and  the  Henriett  Company 
the  other  half,  and  that  the  other  plaintiffs 
were  not  owners,  by  showing  that  the  wit- 
ness had  so  stated  in  a  legal  document  signed 
and  veritied  by  him  as  manager  and  agent  in 
some  former  proceeding  concerning  the  prop- 
erty, in  which  case  an  injunction  was  issued 
to  restrain  a  trespass  upon  the  Maid  of  Erin 
claim  upon  the  complaint  so  signed  and  ver- 
ified; but  the  court  would  not  permit  it  to  be 
done.  An  examination  of  the  questions  asked 
tlie  witness,  wiiicii  the  court  did  not  per- 
mit him  to  answer,  will  show  that  none  of 
the  testimony  souglit  went  to  any  issue  in 
the  case,  was  not  directed  to  anything  in  his 
direct  testimony,  and  was  not  legitimate 
cross-examination.  Many  of  the  questions 
were  in  regard  to  facts  that  could  only  have 
been  proved  by  production  of  records  or  doc- 
uments. Some  of  the  questions  were  in  re- 
gard to  suits  at  law  and  proceedings  where 
there  is  nothing  in  the  record  to  show  he  in 
any  way  participated  or  of  which  he  had  any 
knowledge;  and  all  the  testimony  sought,  in 
our  view  of  the  case,  was  immaterial,  except 
in  so  far  as  it  tended  to  discredit  him  or 
weaken  his  testimony  by  showing  that  his 
acts  or  declarations  on  previous  occasions 
were  at  variance  and  inconsistent  with  liis 
testimony  at  that  time.  This  counsel  had  a 
right  lo  do  by  introducing  the  records  or  doc- 
uments, and  asking  him  in  regard  to  oral 
statements.  It  appears  that  in  the  course  of 
the  trial  the  papers  executed  by  the  witness, 
to  which  his  attention  was  called,  were  ad- 
mitted in  evidence  for  the  purpose  of  im- 
peacimient, — the  only  legitimate  purpose  they 
could  serve. 

It  is  clear  that  the  title  of  the  Henriett 
Company  to  one-half  of  the  Maid  of  Erin 
claim  could  not  iiave  been  established  by  pa- 
rol stateu^ents,  or  the  acts  of  an  agent  in 
verifying  papers  where  the  facts  were  so 
state  1.  Counsel  say  this  was  one  purpose 
for  which  the  evidence  was  sought  to  be  elic- 
ited on  cross-examination.  Had  it  been 
proper  cross-examination,  and  directed  to  an 
issue,  it  was  incompetent  for  the  declared 
purposes  for  which  it  was  sought.  The 
agency  of  the  witness  had  not  been  estab- 
lished by  any  testimony  but  his  own.  He  stat- 
ed under  oath  at  the  time  suit  was  brought 
tliat  he  was  the  manager  and  agent  of  the 
Henriett  Company.  This  wasinsufficient.  An 
agency  cannot  be  establislied  by  his  own  dec- 
larations.    Harker  v.  Dement,  9   Gill,    16; 


James  v.  Stookey,  1  Wash.  C.  C.  330.^  If  an 
agency  had  been  proved,  it  was  thai  at  tlie 
time  of  verifying  the  papers  he  was  the  n)an- 
ager  and  agent  of  the  Henriett  Company; 
and  his  sworn  statement  that  he  was  such 
agent,  and  tiiat  his  principal  owned  one-halt 
of  defendants'  claim,  could  not  be  binding 
upon  or  in  any  way  affect  the  plaintiffs  in 
this  action.  And  although  he  was  the  a^ei  t 
of  plaintiffs,  in  charge  of  their  work  in  the 
Maid  of  Erin,  no  statement,  no  matter  how 
solemnly  made  by  him  tis  the  agent  of  the 
Hem  iett  Company,  in  favor  of  such  company, 
or  against  the  title  of  plaintiffs,  could  alTect 
either,  much  less  conclude  and  estop  the  plain- 
tiffs from  asserting  the  contrary,  as  is  urged 
by  counsel.  There  was  no  plea  of  property  in 
the  Henriett  Company,  and  of  entry  and  justi- 
fication under  such  a  title.  Tlie  defendant  in 
this  case  cannot  set  up  a  title  of  a  third  per- 
son in  defense,  unless  he  in  some  manner 
connects  himself  with  it.  Duncan  v.  Spear. 
11  Wend.  54;  Weymouth  v.  Railroad  Co.,  17 
Wis.  555;  Harker  v.  Dement,  9  Gill,  7.  It 
follows  that  the  court  did  not  err  in  limiting 
the  testimony  on  the  cross-examination  to 
the  attempted  discrediting  of  the  witness, 
and  in  refusing  to  admit  records,  except  for 
purposes  of  impeachment. 

It  is  assigned  for  error  that  the  court  al- 
lowed plaintiff  Tabor  to  testify  to  a  conver- 
sation with  McComb  after  the  bitter  had 
been  called,  and  had  given  his  version  of  it. 
Counsel  put  it  upon  the  ground  that  a  party 
cannot  be  allowed  to  contradict  or  impeacii 
his  own  witness.  It  does  not  appear  that 
Tabor  was  called  for  any  such  purpose,  or 
that  his  testimony  had  that  effect.  He  was 
called  to  give  his  version  of  what  occurred 
at  that  interview  with  McComb.  A  careful 
comparison  of  the  testimony  of  both  shows 
that  of  Tabor  more  corroborative  of  than  con- 
tradictory to  that  of  McComb, — at  least,  as 
to  the  result  of  such  conversation, — althougii 
there  is  some  discrepancy  in  regard  to  tiie 
language  used.  "The  party  calling  a  wit- 
ness is  not  precluded  from  proving  thetrutJi 
of  any  particular  fact  by  any  other  competent 
testimony."     1  Greenl.  Ev.  §  443. 

A[)pellants'  counsel  rely  upon  the  conver- 
sation of  Tabor  with  McComb  as  a  license  or 
consent  on  the  part  of  Tabor  to  the  entry  and 
taking  of  the  ores  from  tlie  Maid  of  Erin 
ground,  and  contend  that  his  license  or  con- 
sent as  a  co-owner  to  the  extent  of  one-six- 
teenth of  the  Maid  of  Erin  ground  was  con- 
clusive upon  himself,  and  also  upon  his  co- 
owners  of  the  other  fifteen-sixteenths,  and 
was  equivalent  to  a  license  or  consent  from 
all,  to  the  extent  of  covering  the  entire  prop- 
erty. A  license  or  consent  cannot  be  ex- 
tended by  inference  as  a  consent  to  entei- 
property  not  spoken  of  or  referred  to  in  tlie 
conversation,  and  we  can  find  nothing  in  the 
testimony  of  either  McComb  or  Tabor  in  re- 
gard to  entering  and  taking  ore  from  the 
Maid  of  Erin  ground.     It  was  not  attempted 

1  Fed.  Cas.  No.  7,184. 


396 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


to  be  shown  that  Ovens.  Wifi;ht,  and  Kucker 
entered  under  license  or  consent  from  Tabor. 
At  the  conversation  both  testify  that  Tabor 
was  informed  the  parties  had  entered  under 
an  order  from  the  court,  against  which  he 
was  powerless  for  the  time.  It  further  ap- 
pears that  those  parties  were  in  at  tiie  time 
McComb  and  Tabor  had  the  conversation, 
and  McConib  only  asked  consent  to  join 
tliem.  It  cannot  be  contended  that  sucli  a 
consent  was  a  license  to  Ovens,  Wight,  and 
Kucker  to  enter.  The  testimony  went  to  tlie 
jury,  and  in  the  eighth  and  ninth  instruc- 
tions given  on  prayer  of  plaintiffs  they  were 
instructed,  in  effect,  that  they  could  not  limit 
or  reduce  the  amount  to  be  recovered  by  rea- 
son of  the  supposed  license  or  consent  of 
Tabor,  unless  they  should  find  that  there  was 
a  consent  on  his  part  tliat  they  should  enter 
tiirough  the  Big  Chief  shaft,  and  take  the 
ore  from  the  Maid  of  Erin  claim;  and  the 
same  proposition  is  submitted  in  the  instruc- 
tion given  on  behalf  of  defendants  in  place 
of  No.  7,  refused.  These  instructions  on 
that  point,  we  think,  were  correct,  and  fairly 
submitted  to  the  jury  the  question  of  license 
or  consent.  And  it  is  evident  from  the  ver- 
dict that  the  jury  found  against  any  such 
license  or  consent;  and,  the  jury  having  so 
found,  it  would  siem  unnecessary  to  deter- 
mine whether  the  instructions  were  correct 
or  otherwise  in  regard  to  the  extent  such  con- 
sent, if  found,  should  alfect  or  modify  the 
amount;  or,  in  other  words,  whether  it  should 
cover  the  whole  taking  of  ore,  or  be  conflned 
to  the  one-sixteenth  owned  by  Tabor.  The 
jury  iiaving  found  no  consent  or  license  on 
the  part  of  Tabor,  defendants  could  not  be 
prejudiced  by  the  instructions  of  the  court  in 
regard  to  its  effect,  if  it  were  found. 

Tlie  question  is  quite  different  from  what 
it  would  be  if  it  related  to  a  transaction  is 
the  ordinary  course  of  business  relative  to 
the  joint  property  of  tenants  in  common. 
Here  it  is  attempted  to  justify  a  tort,  and 
the  injury  to  the  entire  property  by  the  sup- 
posed license  of  one  joint  owner.  If  the  en- 
try had  been  made  by  Tabor  in  person,  and 
ttie  wrongs  attempted  to  be  justilied  under 
permission  from,  had  been  done  by,  him,  his 
co-tenants  could  have  had  against  iiim  the 
same  actions  at  law  for  injuries  to  their  in- 
terests that  all  are  attempting  to  enforce 
against  parties  having  no  interest.  It  is 
held  "an  action  on  the  case  sounding  in  tort 
may  be  maintained  by  one  tenant  in  common 
against  his  cu-teiiant  for  a  misuse  uf  the  com- 
mon {iroperty,  though  not  amounting  to  a 
total  destruction  of  it."  McLellan  v.  Jen- 
ne.ss,  43  Vt.  183;  Agnew  v.  Johnson,  17  Pa. 
St.  373;  Lowe  v.  Miller,  3  Cxrat.  205.  And, 
if  one  tenant  in  common  assume  to  own  and 
sell  tlie  tiling  held  in  common,  the  other  may 
maintain  an  action  of  trover  against  him. 
Burbank  v.  Crooker,  7  Gray,  159;  Wheeler 
V.  Wheeler,  33  Me.  347;  Coursin's  Appeal, 
79  Pa.  St.  220;  White  v.  Osborn,  21  Wend. 
72;  Smyth  v.  Tankersley,  20  Ala.  212.  The 
authority  of  the  tenant  in  common  could  not 


be  extended  to  cover  acts  of  others  that  he 
could  not  legally  have  done  himself.  Hence 
the  court  was  correct  in  holding  and  instruct- 
ing the  jury  that  the  consent  or  license  of 
Tabor,  if  such  were  found,  could  only  extend 
to  the  interest  owned  by  him  in  the  common 
property. 

Appellants  further  assign  for  error  the  rul 
ing  of  the  court  in  admitting  the  testimony 
of  Tabor  when  called  by  the  plaintiffs  to 
show  that,  by  a  parol  agreement  made  at  the 
time  of  the  conveyance  of  the  different  inter- 
ests by  Tabor,  Moffatt,  and  Chaffee  In  the 
Henriett  Company,  possession  of  the  proper- 
ty conveyed  was  to  remain  in  the  grantors 
until  the  purchase  price  was  paid;  that  it 
never  was  paid;  and  possession  under  the 
conveyance  never  delivered.  A  part  of  such 
testimony — that  which  went  to  show  that 
possession  was  to  be  retained — was  inad- 
missible. "All  conveyances  of  real  estate 
and  of  any  interest  therein  duly  executed 
and  delivered  shall  be  held  to  carry  with 
them  the  right  to  immediate  possession  of 
the  premises  or  ir.terest  conveyed,  unless  a 
future  day  for  the  possession  is  therein  speci- 
netl."  Gen.  St.  c.  18,  §  9;  Drake  v.  Root,  2 
Colo.  685.  Under  the  statute,  it  is  certainly 
required  that  tlie  intention  to  postpone  the 
operation  of  a  deed  shall  be  declared  in  the 
instrument,  and  itcannot  be  proved  by  parol. 
It  follows  that  the  instructions  of  the  court 
on  this  point  were  in  part  erroneous;  that 
part  of  the  testimony  going  to  prove  that 
possession  of  the  property  was  never  deliv- 
ered, and  remained  in  the  grantors,  was 
clearly  competent  and  proper;  and  the  in- 
structions of  the  court  were  proper  on  that 
point. 

The  admission  in  evidence  of  the  deeds  of 
reconveyance  by  the  Henriett  Mining  Com- 
pany and  the  assignment  of  llider  of  his 
cause  of  action  was  not  erroneous,  and 
should  be  sustained, — the  former  investing 
plaintiffs  with  full  title  before  the  com- 
mencement of  suit;  and  of  tlie  validity  of 
the  latter,  so  as  to  enable  Moffatt,  assignee, 
to  succeed  to  ail  the  rights  of  his  assignor, 
there  can  be  no  question  under  our  statute. 
Had  defendants,  by  pi'oper  and  competent 
testimony,  attempted  to  prove  the  owner- 
ship of  one-half  of  the  Maid  of  Erin  claim  in 
the  Heniiett  Company,  it  would  have  been 
inadmissible.  There  was  no  attemped  justi- 
fication of  entry  of  Wij;ht  and  others  un- 
der the  Henriett  title  of  one-half.  Under  a 
plea  that  the  close  ui)on  which  the  alleged 
trespass  was  committed  was  not  at  that 
time  the  close  of  the  plaintiff,  the  defendant 
may  show  lawful  right  to  the  possession  of 
the  close  in  a  third  person,  untler  whom  he 
claims  to  have  acted.  .Jones  v.  Chapman,  2 
Exch.  803.  But  a  bare  tort-feasor  cannot 
set  up  in  defense  the  title  of  a  third  person 
between  whom  and  himself  there  is  no  priv- 
ity of  connection.  Branch  v.  Doane,  18 
Conn.  233.  In  justifying  under  a  third  per- 
son, the  defendant  must  show  both  the  title 
and  the  possession  of  that  person,  (Chambers 


INJURIES  TO  REAL  PROPERTY. 


39i 


V.  Donaldson,  11  East,  65;  Merrill  v.  Bur- 
bank,  23  Me.  538;  Keed  v.  Price,  30  Mo. 
442.)  and  that  the  acta  were  done  by  that 
person's  authority.  (Dunlap  v.  Glidden,  31 
Me.  510.)  A  defendant  can  only  justify  up- 
on the  ground  of  a  better  right  or  title  than 
the  plaintiffs  have.  And  it  has  been  held 
that  mere  naked  possession,  however  ac- 
quired, is  good  as  against  a  person  having 
no  right  to  the  possession.  Knapp  v.  Win- 
chester, 11  Vt.  351;  Hasleni  v.  Lockvvood, 
37  Conn.  500;  Cook  v.  Patterson,  35  Ala. 
102.  It  will  be  apparent  that  in  the  judg- 
ment of  this  court  the  effort  of  defendants 
to  set  up  title  to  half  of  the  property  in  the 
Maid  of  Erin  claim  in  the  Henriett  Company, 
without  a  plea  to  that  effect,  and  attempt- 
injj  to  show  privity  or  attempting  to  justify 
under  it,  was  unwarranted  in  law,  and  that 
no  testimony  should  have  been  taken  in 
support  of  any  such  attempted  defense. 

Another  defense  interposed,  which  seems 
incompatible  with  the  former,  was  that  cer- 
tain parties,  named  in  the  answer,  were  the 
owners  of  the  Vanderbilt  claim,  and  that 
such  claim  conflicted  with  and  comprised  a 
part  of  the  Maid  of  Erin  claim,  and  tiiat  the 
claim  was  in  the  possession  of  the  owners 
named  under  claim  and  color  of  title;  and 
that  the  ground  from  which  the  ore  was  tak- 
en was  in  conflict  between  the  owners  of  the 
claim,  and  that  divers  suits  in  regard  to  the 
same  were  pending  and  undetermined;  that 
Wight  and  others,  while  engaged  in  mining 
the  Vanderbilt  claim,  took  the  ores  from  the 
ground  in  controversy,  which  defendants 
bought  as  Vanderbilt  ore;  and  that  the  same 
was  taken  by  the  owners  of  such  claim  while 
the  locus  was  iu  their  possession  under  color 
of  title.  It  is  shown  in  evidence  that  there 
were  two  entries  on  the  property  in  contro- 
versy,— tlie  first  by  Wight,  one  of  the  owners 
of  the  Big  Chief  in  1882,  after  the  Maid  of 
Erin  had  a  receiver's  receipt  from  the  United 
States  land-office,  when  a  drift  was  run  from 
the  Big  Chief  shaft  for  the  Maid  of  Erin, 
and  was  run  over  the  line  20  or  28  leet,  in- 
to the  Maid  of  Erin  ground.  The  second 
entry  was  by  the  sarue  party  and  otiiers.  in 
tlie  same  way,  and  upon  the  same  ground. 
2«<eitlier  entry  was  made  by  extending  the 
work  of  the  Vanderbilt  claim  to  its  exterior 
limits,  and  thus  entering  the  Maid  of  Erin 
property.  The  party  entering  and  partici- 
pating in  the  proceeds  of  the  ores  mined 
were  not  the  owners  of  the  Vanderbilt,  but 
seems  to  have  been  one  made  up  for  the  occa- 
sion,— part  of  the  owners  of  the  Vanderbilt, 
some  of  the  owners  of  the  Big  Chief,  and,  per- 
haps, parties  owning  in  neitlier.  The  plain- 
tills  pleaded  title  to  the  Maid  of  Erin  claim 
from  the  government  of  the  United  States, 
and  put  in  evidence  a  receiver's  receipt  for 
the  purchase  of  the  property,  of  date  Novem- 
ber 23,  1881,  and  a  patent  from  the  United 
States  government  dated  March  17,  1884. 
It  has  been  frequently  held  that  a  patent  for 
land  emanating  from  the  government  of  the 
United  States  is  the  highest  evidence  of  title, 


and  in  courts  of  law  is  evidence  of  the  true 
performance  of  every  prerequisite  to  its  is- 
suance, and  cannot  be  questioned  either  in 
courts  of  law  or  equity,  except  upon  ground 
of  fraud  or  mistake,  and,  if  not  assailed  for 
fraud  or  mistake,  is  conclusive  evidence  of 
title.  On  the  23d  of  Novemljer,  1881,  the  gov- 
ernment parted  with  its  title  to  the  Maid  of 
Erin  projjerty,  sold  it  to  Tabor  and  Du  liois, 
and  gave  a  receipt.  The  government  could 
thereafter  no  more  dispose  of  the  land  than 
if  a  patent  had  been  issued.  "The  final  cer- 
tificate obtained  on  the  {)ayment  of  the  money 
is  as  binding  on  the  government  as  the  pat- 
ent. *  *  *  When  the  patent  issues  it 
relates  back  to  the  entry.  *  *  *  »  As- 
trom  V.  Hammond,  3  McLean,  107;^  Blach- 
ley  V.  Coles,  6  Colo.  350;  Poire  v.  Wells,  Id. 
406;  Steel  v.  Smelting  Co.,  106  U.  S.  447.  1 
Sup.  Ct.  Rep.  389;  Heydenfeldt  v.  Mining 
Co.,  93  U.  S.  634.  The  patent  does  not  in- 
vest the  purchaser  with  any  additional  prop- 
erty in  the  land.  It  only  gives  him  better  legal 
evidence  of  the  title  which  he  first  acquired 
by  the  certificate.  Cavender  v.  Smith,  5 
Clarke,  (Iowa.)  189;  Id.  3G.  Green,  349;  Ar- 
nold V.  Grimes,  2  Clarke,  (Iowa,)  1;  Carroll 
v.  Safford,  3  How.  460;  Bagnell  v.  Brodei- 
ick,  13  Pet.  450;  Carman  v.  Johnson,  29 
Mo.  94;  Hutchings  v.  Low,  15  Wall.  88.  A 
patent  title  cannot  be  attacked  collaterally. 
"Individuals  can  resist  the  conclusiveness  of 
the  patent  only  by  showing  that  it  conflicts 
with  prior  rights  vested  in  them."  Boggs 
V.  Mining  Co.,  14  Cal.  362;  Leese  v.  Clark, 
18  Cal.  555;  Jackson  v.  Lawton,  10  Johns. 
24.  An  "adverse  possession"  is  defined  to 
be  the  enjoyment  of  land,  or  such  estate  as 
lies  in  grant,  under  sucli  circumstances  as 
indicate  that  such  enjoyment  has  been  com- 
menced and  continued  under  assertion  or  color 
of  right  on  the  part  of  the  possessor.  Wal- 
lace V.  Duflield.  2  Serg.  &  K.  527;  French 
V.  Pearce,  8  Conn.  440;  Smith  v.  Burtis,  9 
Johns.  174.  The  entry  of  a  stranger,  and 
the  taking  of  rents  or  profits  by  him,  is 
not  an  adverse  possession.  AVhen  two  parties 
are  in  possession,  the  law  adjudges  it  to  be 
the  possession  of  the  party  who  has  the 
right.  Heading  v.  Kawsterne,  2  Ld.  Maym. 
829;  Barr  v.  Gratz,  4  AVheat.  213;  Smith  v. 
Burtis,  6  Johns.  218;  Stevens  v.  HoUister,  18 
Vt.  291;  Brimmer  v.  Long  Wharf,  5  Pick. 
131.  Possession,  to  be  supported  by  the  law, 
must  be  under  a  claim  of  right,  and  adverse 
possession  must  be  strictly  |)roved.  Grube 
V.  Wells,  34  Iowa,  150.  The  color  must 
arise  out  of  some  conveyance  purporting  to 
convey  title  to  a  tract  of  land.  3  Washb. 
Ileal  Prop.  155;  Shackleford  v.  Bailey,  35 
111.  391. 

The  title  of  the  Maid  of  Erin  claim  was  in 
the  government  of  the  United  States  until 
divested  by  its  owu  act.  There  could  be  no 
adverse  possession  against  the  government. 
The  claimants  of  the  Vanderbilt  claim  en- 
tered   under  license  only  from  the  govern- 

2  Fed.  Cas.  No.  596. 


398 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


ment.  Ad-nitting,  for  the  purposes  of  this 
case,  tlial  tlie  entry  under  the  license  was 
legal,  that  tiiey  had  complied  with  the  laws 
of  congress  and  the  state,  and  that  their  pos- 
session extended  to  and  was  protected  to  their 
exterior  lines  wiiile  the  lee  remained  in  the 
government,  wiien  the  fee  passed  from  the 
government  to  the  other  party  conveying  the 
lucus,  before  that  time  in  controversy,  the 
supposed  license  was  revoked,  and  all  acts 
and  declarations  of  the  parties  themselves, 
whether  by  record  or  otherwise,  as  estab- 
lisiiin^  a  possessory  right,  were  void  as 
against  the  grantees  of  the  government, 
and  there  could  be  no  entry  under  color  of 
title,  except  by  some  right  by  conveyance 
either  from  the  government  or  its  grantees. 
The  fact  of  the  actual  possession  and  occu- 
pancy of  the  Maid  of  Erin  by  plaintiffs  was 
not  seriously  disputed,  and  the  testimony 
was  ample  to  warrant  the  jury  in  finding  the 
fact.  The  government  had  granted  thel  .nd 
previous  to  the  entry  of  Wight  and  others, 
and  that  such  possession  under  a  legal  title 
was  co-extensive  with  its  bounds  is  so  well 
settled  that  authorities  in  its  support  are  un- 
necessary. 

We  do  not  think  the  court  erred  in  refusing 
to  admit  the  testimony  offered  in  support  of 
possessory  title  of  the  Vanderbilt  in  tiie  land 
from  which  the  ore  was  taken,  nor  in  le- 
f  using  the  testimony  in  reference  to  litigation 
and  suits  pending  between  the  parties. 
Neither  the  title  nor  right  of  possession  of 
plaintiffs  could  be  attacked  collaterally  as  at- 
tempted, and  the  testimony  offered  under 
the  law  as  shown  above  was  incompetent  and 
inatimissible  to  prove  either  adverse  pos- 
session or  color  of  title.  From  our  view  of 
the  law  controlling  the  case,  as  stated  above, 
it  follows  tliat  the  court  did  not  err  in  re- 
fusing tlie  instructions  asked  on  this  point 
by  the  defendants,  or  in  giving  those  which 
were  given.    They  were  substantially  correct. 

The  sale  of  ore  by  Wight  and  others,  and 
purchase  by  the  defendants,  was  a  conver- 
sion. A  "conversion"  is  difined  to  be  any 
act  of  the  defendant  incons  stent  with  the 
plaintiff's  rii:ht  of  possession,  or  subversive 
of  ii.s  right  of  proi)erty.  Harris  v.  Saunders, 
2  .Strob.  E(|.  l!70,  note;  Webber  v.  Davis.  44 
Me.  147;  Gilman  v.  Hill,  36  X.  H.  311:  Clark 
V.  Wh. laker,  19  Conn.  319.  The  defend- 
ants, by  purciiasing  the  ore,  acquired  no 
title,  and  are  conse(]uently  equally  liable  for 
its  conversion  as  the  parties  wiio  sold  it. 
Clark  v.  W.-Us,  45  Vt.  4;  Clark  v.  Hideout, 
39  N.  11.238;  Carter  v.  Kingman,  103  Mass. 
517.  And  it  was  a  matter  of  no  importance, 
so  far  as  the  legal  liability  of  defendants  was  j 
concerne  I,  whether  tiiey  were  ignorant  or 
inloriiied  of  the  true  ownership.  Morrill  v. 
Moulton,  4J  Vt.  242;  Jolinson  v.  Powers,  Id. 
611;  itailroad  Co.  v.  Car- Works  Co.,  32  N. 
J.  Law,  517;  Dixon  v.  Caldwell,  15  Ohio  St. 
412;  Hoffman  v.  Carow,  22  Wend.  285.  The 
pr.nciple  caveat  em/vi^jr  applies.  A  person 
purciiasing  property  of  the  party  in  posses- 
sion,  without  ascertaining  where  the  true 


title  is,  does  so  at  his  peril,  and,  although 
honestly  mistaken,  will  be  liable  to  the  owner 
for  a  conversion.  Taylor  v.  Pope,  5  Cold. 
413;  Cilmore  v.  Newton,  9  Allen,  171; 
Spraights  v.  Hawley,  39  N.  Y.  441. 

The  question  of  the  proper  measure  of 
damages  is  one  of  mucii  greater  difhculty. 
W^e  can  find  no  conclusive  adjudication  in  our 
own  court.  The  decisions  of  the  different 
states  are  conllicting  and  irreconcilable.  Al- 
though, under  our  Code,  different  forms  of 
action  are  abolished,  the  princif)les  controlling 
the  uitferent  actions  remain  the  same  as  be- 
fore its  adoption.  Consequently  the  Taw  ap- 
plicable and  to  be  administered  in  each  case 
depends  as  much  as  formerly  upon  the  nat- 
ure of  the  case, — the  allegations  and  the  dis- 
tinctive form  the  case  assumes.  In  many 
states  the  courts  have  attempted  in  this  ac- 
tion to  make  the  rule  of  damage  correspond 
to  that  in  the  action  of  trespass,  and  make  it 
in  that  respect  as  full  and  complete  a  remedy. 
In  the  state  of  New  York  it  was  long  held, 
and  perhaps  still  is,  that  the  increased  value 
of  tiie  property,  added  by  the  labor  and  acts 
of  defendant,  belongs  to  the  rightful  owner 
of  the  property,  and  the  value  of  the  property 
in  its  new  and  improved  state  thus  becomes 
the  measure  of  damages,  but  the  doctrine 
has  been  questioned  and  severely  criticised 
in  the  same  state.  Brown  v.  Sax,  7  Cow.  95. 
In  trespass,  damage  for  the  whole  injury,  in- 
cluding diminution  in  the  value  of  the  land 
by  the  entry  and  removal,  as  well  as  of  the 
value  of  the  property  removed,  may  be  re- 
covered; and  the  character  of  the  entry, 
whether  willful  and  malicious,  or  in  good 
faith,  through  inadvertence  or  mistake,  is  an 
important  element, — an  element  tiiat  cannot 
enter  into  the  action  of  trover.  In  trover, 
thi'  specific  articles  cannot  be  recovered  as  in 
replevin.  Consequently  the  same  rule  as  to 
increased  value  cannot  be  applied  as  in  that 
action,  where  the  specific  property  can  be 
followed,  and,  when  identified,  taken  without 
regard  to  the  form  it  has  assumed.  It  seems, 
on  principle,  therefore,  (and  this  is  in  har- 
mony with  the  English  authorities  and  those 
of  many  of  the  states,)  that  where  a  party 
makes  his  election,  and  adojjts  trover,  the 
rule  of  damage  is  and  should  be  pro[)er  com- 
pensation for  the  property  taken  and  con- 
verted, regardless  of  the  manner  of  entry  and 
taking;  and,  where  the  chattel  was  severed 
from  the  realty,  regardless  of  the  diminished 
value  of  the  realty  by  reason  of  the  taking. 
In  other  words,  tiie  true  rule  should  be  the 
value  of  the  chattel  as  such  when  and  where 
first  severed  from  the  realty  and  becoming  a 
chattel.  An  examination  of  the  authorities 
will  show  that  the  rule  of  damages  to  some 
extent  depends  upon  the  form  of  action, 
— whether  the  action  is  for  an  injury  to  the 
land  itself,  or  for  the  conversion  of  a  chattel 
which  had  been  severed  from  the  land.  Tiiis 
distinction  seems  well  founded  in  principle 
and  reason.  This  view  of  the  law  is  sup- 
ported by  Martin  v.  Porter,  5  Mees.  &  W.  352; 
Wild  V.Holt,  9  Mees.  &  W.  672;  Morgan  v. 


INJURIES  TO  REAL  PROPERTY. 


891> 


Powell,  3  Q.  B.  278;  Hilton  v.  Woods,  L.  K. 
4  Eq.  432;  Maye  v.  Yappen,  23  C:il.  306; 
Ooller  V.  Fett,  30  Cal.  481 ;  Coleman's  Appeal. 
€2  Pa.  St.  252;  Gushing  v.  Longfellow,  26 
Me.  306;  Forsyth  v.  Wells,  41  Pa.  St.  291; 
Kier  v.  Peterson,  Id.  357;  Moody  v.  Whit- 
ney, 38  Me.  174.  We  are  therefore  of  the 
opinion  tiiat  the  rule  of  damage  adopted,  and 
tlie  instructions  of  the  court  as  to  the  meas- 
ure of  damage,  were  erroneous,  and  that  it 
should  have  been  the  value  of  the  ore  sold,  as 
shown,  less  the  reasonable  and  proper  cost  of 
raising  it  from  tlie  mine  after  it  was  broken, 
«nd  liauling  fi-om  the  mine  to  the  defendants' 
place  of  business.  We  do  not  find  it  neces- 
sary to  decide  whether  or  not  plaintiffs'  coun- 
sel, by  stating  in  the  complaint  that  the  ore 
taken  and  converted  was  of  a  certain  value 
"over  and  above  the  cost  of  mining,  digging, 
and  extracting  the  same  from  the  ground, 
raising  the  same  to  the  surface,  hauling  the 
same  to  the  defendants'  leduction  works,  and 
the  cost  of  treating  tlie  same,"  and  defend- 
ants taking  issue  upon  it,  precluded  tliem 
from  proving  and  taking  greater  damage 
upon  the  trial;  but  if  it  were  necessary,  for 
the  purpose  of  determining  this  case,  we 
should  be  inclined  to  so  hold.  In  this  action 
value  is  a  material  averment,  and  the  plain- 
tiffs have  deliberately  asserted  one  rule,  and, 
issue  having  been  taken  upon  it,  should  not 
be  permitted  to  change  base,  and  adojit  upon 
trial  another  more  disadvantageous  tothede- 
fendants.  In  this  case  it  could  not  have 
been  said  the  evidence  was  in  support  of  tlie 
allegation  or  directed  to  an  issue.  The  testi- 
mony should  have  been  directed  to  the  issue, 
■or  the  pleadings  amended. 

Counsel  for  appellees,  after  obtaining  leave 
from  this  court,  assigned  for  cross-error  the 
refusal  of  the  court  to  allow  interest  on  the 
amount  found  due  from  the  time  of  the  con- 
version, and  the  instruction  of  the  court  on 
that  point.  It  is  true,  as  stated  by  the  learned 
judge,  "that  interest  in  this  state  is  a  creat- 
ure of  statute,  and  regulated  tiiereby;  that  it 
is  only  recoverable  in  the  absence  of  contract 
in  cases  enumerated  in  the  statute;  and  that 
•damages  to  property  arising  from  a  wrong  or 
negligence  of  the  defendants  is  not  one  of  the 
enumerated  cases."  This  could  not  come 
under  the  last  clause  of  the  instruction.  It 
is  not  for  damage  to  property.  It  is  for  the 
wroHLiful  detention  of  money  belonging  to 
plaintiffs.  It  is  dearly  distinguishable  from 
Kailroad  Co.  v.  Conway,  8  Colo.  1,  5  Pac. 
Kep.  142,  and  Hawley  v.  Barker,  5  Colo,  118. 
There  does  not  appear  to  have  been  any  de- 
cision in  this  state  directly  on  the  question 
j)resented.     The  same  statute  has  been  con- 


strued in  Illinois  (from  which  state  it  was 
taken)as  allowing  interest  in  this  class  of  cases 
from  the  time  of  the  conversion,  and  there 
has  been  an  unbroken  line  of  decisions  in 
that  state  from  Bradley  v.  Geisilman,  22  111. 
494,  to  Railroad  Co.  v.  Cobb,  72  111.  148,  in 
which  it  is  said,  reviewing  the  decisions: 
"The  doctrine  established  by  these  author- 
ities is,  where  property  has  been  wrongluliy 
taken  or  converted  into  money,  and  an  action 
of  trespass  or  trover  may  be  maintained,  in- 
terest may  properly  be  recovered;  and  this 
is  based  upon  the  statute  which  autiiorizes 
interest  when  there  has  been  an  unreason- 
able and  vexatious  delay  of  payment.  There 
can  be  no  difference  between  the  delay  of  pay- 
ment of  a  money  demand  and  one  wh  re  prop- 
erty has  been  wrongi  ully  taken,  or  taken  ami 
converted  into  monej'  or  its  equivalent.  Tlie 
two  rest  upon  the  same  principle."  The  rule 
is  that  when  the  statute  of  another  state  is 
adopted  the  construction  of  the  statute  in 
that  state  is  also  ad'ipt*  d,  and  remains  the 
true  construction  until  authoritativelv  con- 
strued by  the  courts  of  the  state  adopting  it. 
The  general  rule,  in  trover  is  th;it  the  dam- 
ages should  embrace  the  value  of  the  prop- 
erty at  the  time  of  the  conversion,  with  in- 
terest up  to  the  time  of  judgment,  and  this 
ruie  has  been  fohowed  in  aiiuusi  a  not  all 
the  states,  and  seems  righton  principle.  But 
our  statute  does  not  seem  to  have  receiveil 
the  same  construction  here  as  in  the  slate  of 
Illinois,  While  in  that  state  it  has  been  put 
plainly  and  squarely  as  interest  under  the 
statute,  in  our  stale  damage  for  the  detention 
of  the  moneyequal  to  the  lej:al  interest  upon 
the  value  of  the  chattels  converted  from  the 
time  of  the  conversion  has  been  allowed,  not 
as  interest,  but  as  damage.  Machetto  v. 
Wanless,  2  Colo.  170;  Ilanauer  v.  Bartels,  Id. 
514;  Tucker  v. Parks,  7  Colo.  02,  1  Pac.  Rep. 
427.  "We  think  the  court  eneti  in  its  instruc- 
tions to  the  jury  on  this  point.  They  should 
have  been  instructed  to  add  to  the  amount 
found  as  the  value  of  the  or',  as  further 
damage,  a  sura  equal  to  legal  interest  on  the 
same  from  the  time  of  the  conversi(m.  For 
the  errors  in  assessing  the  damage,  the  case 
should  be  reversed,  and  reman  led  for  a  new 
trial  in  accordance  with  the  views  herein  ex- 
pressed. 

RICHMOND  and  PATTISOX,  CC,  con- 
cur. 

PER  CURIAM.  For  the  reasons  stated 
in  the  foregoing  opinion  the  judgment  is  re- 
versed. 

Reversed. 


400 


DAMAGES  FOK  INJURIES  TO  PROPERTY. 


E.  E.  BOLLES  WOODEN  WARE  CO.  v. 
UNITED  STATES. 

(1  Sup.  Ct.  398,  106  U.  S.  432.) 

Supreme  Court  of  the  United  States.    Dec.  18, 

1882. 

In  Error  to  the  Circuit  Court  of  the  United 
States  for  the  Eastern  District  of  Wiscon- 
sin. 

Samuel  D.  Hastings,  Jr.,  for  plaintiff  in 
error. 

Asst.  Atty.  Gen.  Maury,  for  defendant  in 
error. 

MILLER,  J.  This  is  a  writ  of  error  to 
the  circuit  court  for  the  eastern  district  of 
Wisconsin,  founded  on  a  certificate  of  di- 
vision of  opinion  between  the  judges  holding 
that  court.  The  facts,  as  certified,  out  of 
whicli  this  difference  of  opinion  arose  ap- 
pear in  an  action  in  the  nature  of  trover, 
brought  by  the  United  States  for  the  value 
of  242  cords  of  ash  timber,  or  wood  suitable 
tor  manufacturing  pui-poses,  cut  and  re- 
moved from  that  part  of 'the  public  lands 
known  as  the  reservation  of  the  Oneida  tribe 
of  Indians,  in  the  state  of  Wisconsin.  This 
timber  was  knowingly  and  wrongfully  taken 
from  the  land  by  Indians,  and  carried  by 
them  some  distance  to  the  town  of  Depere, 
and  there  sold  to  the  E.  E.  Belles  Wood- 
Ware  Company,  the  defendant,  which  was 
not  chargeable  with  any  intentional  wrong 
or  misconduct  or  bad  faith  in  the  purchase. 
The  timber  on  the  ground,  after  it  was  felled, 
was  worth  25  cents  per  cord,  or  .^00.71  for 
the  whole,  and,  at  the  town  of  Depere,  where 
defendant  bought  and  received  it,  $3.50  per 
cord,  or  $850  for  the  whole  quantity.  The 
question  on  which  the  judges  divided  was 
whether  the  liability  of  the  defendant  should 
be  measured  by  the  first  or  the  last  of  these 
valuations.  It  was  the  opinion  of  the  circuit 
judge  that  the  latter  was  the  proper  rule  of 
damages,  and  judgment  was  rendered 
against  the  defendant  for  that  sum.  We 
cannot  follow  counsel  for  the  plaintiff  in  er- 
ror through  the  examination  of  all  the  cases, 
both  in  England  and  this  country,  which  his 
commendable  research  has  enabled  him  to 
place  upon  the  brief.  In  the  English  courts 
the  decisions  have  in  the  main  grown  out  of 
coal  taken  from  the  mine,  and  in  such  cases 
the  principle  seems  to  be  established  in  those 
courts  that  when  suit  is  brought  for  ihe 
value  of  the  coal  so  taken,  and  it  has  been 
the  result  of  an  honest  mistake  as  to  the 
true  ownership  of  the  mine,  and  the  taking 
was  not  a  willful  trespass,  the  rule  of  dam- 
ages is  the  value  of  the  coal  as  it  was  in  the 
mine  before  it  was  disturbed,  and  not  its 
value  when  dug  out  and  delivered  at  the 
mouth  of  the  mine.  Martin  v.  Porter,  5 
Mees.  &  W.  351;  Morgan  v.  Powell.  3  Adol. 
&  E.  (N.  S.)  278;  Wood  v.  Morewood.  3  Adol. 
&  E.  440;  Hilton  v.  Woods,  L.  R.  4  Kq.  438; 
.Tegon  v.  Vivian,  L.  R.  G  Ch.  App.  7G0. 


The  doctrine  of  the  English  courts  on 
this  subject  is  probably  as  well  stated  by 
Lord  Hatherly  in  the  house  of  lords,  in  the 
case  of  Livingston  v.  Coal  Co.,  L.  R.  5  App. 
Cas.  33,  as  anywhere  else.  He  said:  "There 
is  no  doubt  that  if  a  man  furtively,  and  in 
bad  faith,  robs  his  neighbor  of  his  property, 
and  because  it  is  underground  is  probably 
for  some  little  time  not  detected,  the  court  of 
equit.v  in  this  counti"y  will  struggle,  or  I 
would  rather  say,  will  assert  its  authority, 
to  punish  the  f  raiid  by  fixing  the  person  with 
the  value  of  the  whole  of  the  property  which 
he  has  so  furtively  taken,  and  making  him 
no  allowance  in  respect  of  what  he  has  so 
done,  as  would  have  been  justly  made  to 
him  if  the  parties  had  been  working  by 
agreement."  But  "when  once  we  an-ive  at 
the  fact  that  an  inadvertence  has  been  the 
cause  of  the  misfortune,  then  the  simple 
coui-se  is  to  make  every  just  allowance  for 
outlay  on  the  part  of  the  person  who  has  so 
acquired  the  property,  and  to  give  back  to 
the  owner,  so  far  as  is  possible  under  the 
circumstances  of  the  case,  the  full  value  of 
that  which  cannot  be  restored  to  him  in 
specie." 

There  seems  to  us  to  be  no  doubt  that  in 
the  case  of  a  willful  trespass  the  nile  as 
stated  above  is  the  law  of  damages  both  in 
England  and  in  this  country,  though  in  some 
of  the  state  courts  the  milder  rule  has  been 
applied  even  to  this  class  of  cases.  Such  are 
some  that  are  cited  from  Wisconsin.  Single 
V.  Schneider,  24  Wis.  299;  Weymouth  v.  Rail- 
road Co.,  17  Wis.  567.  On  the  other  hand, 
the  weight  of  authority  in  this  country  as 
well  as  in  England  favors  the  doctrine  that 
where  the  trespass  is  the  result  of  inad- 
vertence or  mistake,  and  the  wrong  was  not 
intentional,  the  value  of  the  property  when 
first  taken  must  govern,  or  if  the  conversion 
sued  for  was  after  value  had  been  added  to 
it  by  the  work  of  the  defendant,  he  should 
be  credited  with  this  addition.  Winchester 
V.  Craig,  33  Mich.  205,  contains  a  full  exam- 
ination of  the  authorities  on  the  point. 
Heard  v.  James,  49  Miss.  236;  Baker  v. 
Wheeler,  8  Wend.  505;  Baldwin  v.  Porter, 
12  Conn.  484.  While  these  principles  are 
sufficient  to  enable  us  to  fix  a  measure  of 
damages  in  both  classes  of  torts  where  the 
original  trespasser  is  defendant,  there  re- 
mains a  third  class  where  a  purchaser  from 
him  is  sued,  as  in  this  case,  for  the  conver- 
sion of  the  property  to  his  own  use.  In  such 
case,  if  the  first  taker  of  the  property  were 
guilty  of  no  willful  wrong,  the  rule  can  in 
no  case  be  more  stringent  against  the  de- 
fendant who  purchased  of  him  than  against 
his  vendor. 

But  the  case  before  us  is  one  where,  by 
reason  of  the  willful  wrong  of  the  party  who 
committed  the  trespass,  he  was  liable,  under 
the  rule  we  have  supposed  to  be  established, 
for  the  value  of  the  timber  at  Depere  the 
moment  before  he  sold  it,  and  the  question 
to  be  decided  is  whether  the  defendant  who 


IN.ILKIKS  TO   REAL  PliOPEKTY. 


4U1 


purchased  it  then  with  no  notice  that  the 
property  belonged  to  the  United  States,  and 
with  no  intention  to  do  wrong,  must  respond 
by  the  same  rule  of  damages  as  his  vendor 
should  if  he  had  been  sued.  It  seems  to  us 
that  he  must.  The  timber  at  all  stages  of 
the  conversion  was  the  property  of  plaintiff. 
Its  purchase  by  defendant  did  not  divest  the 
title  nor  the  right  of  possession.  The  recov- 
ery of  any  sum  whatever  is  based  upon  that 
proposition.  This  right,  at  the  moment  pre- 
ceding the  purchase  by  defendant  at  Depere, 
was  perfect,  with  no  right  in  any  one  to  set 
up  a  claim  for  work  and  labor  bestowed  on 
it  by  the  wi'ong-doer.  It  is  also  plain  that 
by  purchase  from  the  wrong-doer  defendant 
did  not  acquire  any  better  title  to  the  prop- 
erty than  his  vendor  had.  It  is  not  a  case 
where  an  innocent  purchaser  can  defend 
himself  under  that  plea.  If  it  were,  he  would 
be  liable  to  no  damages  at  all,  and  no  re- 
covery could  be  had.  On  the  contrary,  it  is 
a  case  to  which  the  doctrine  of  caveat 
emptor  applies,  and  hence  the  right  of  re- 
covery in  plaintiff.  On  what  ground,  then, 
can  it  be  maintained  that  the  right  to  re- 
cover against  him  should  not  be  just  what  it 
was  against  his  vendor  the  moment  before 
he  interfered  and  acquired  possession?  If 
the  case  were  one  which  concerned  addition- 
al value  placed  upon  the  property  by  the 
work  or  labor  of  the  defendant  after  he  had 
purchased,  the  same  rule  might  be  applied  as 
in  case  of  the  inadvertent  trespasser.  But 
here  he  has  added  nothing  to  its  value.  He 
acquired  possession  of  property  of  the  United 
States  at  Depere,  which,  at  that  place,  and  in 
its  then  condition,  is  worth  $850,  and  he 
wants  to  satisfy  the  claim  of  the  government 
by  the  payment  of  $60.  He  founds  his  right 
to  do  this,  not  on  the  ground  that  anj'thing 
he  has  added  to  tiae  property  has  increased 
its  value  by  the  amount  of  the  difference  be- 
tween these  two  sums,  but  on  the  proposition 
that  in  purchasing  the  property,  he  pur- 
chased of  the  wrong-doer  a  right  to  deduct 
what  the  labor  of  the  latter  had  added  to  its 
value. 

If,  as  in  the  case  of  an  unintentional  tres- 
passer, such  right  existed,  of  course  defend- 
ant would  have  bought  it  and  stood  in  his 
shoes;  but,  as  in  the  present  case,  of  an  in- 
tentional trespasser,  who  had  no  such  right 
to  sell,  the  defendant  could  purchase  none. 

Such  is  the  distinction  taken  in  the  Roman 
law  as  stated  in  the  Inst.  Just.  lib.  2,  tit.  1, 
§  34. 

After  speaking  of  a  painting  by  one  man 
on  the  tablet  of  another,  and  holding  it  to 
LAW  DAM.LM  Ed.~26 


be  absurd  that  the  work  of  an  Appelles  or 
Parrhasius  should  go  without  compensation 
to  the  owner  of  a  worthless  tablet,  if  the 
painter  had  possession  fairly,  he  says,  as 
traushited  by  Dr.  Cooper:  "But  if  he,  or  any 
other,  shall  have  taken  away  the  tablet  felo- 
niously, it  is  evident  the  owner  may  prose- 
cute by  action  of  theft" 

The  case  of  Nesbitt  v.  Lumber  Co.,  21  Minn. 
491,  is  directly  in  point  here.  The  supreme 
court  of  Minnesota  says:  "The  defendant 
claims  that  because  they  [the  logs]  were  en- 
hanced in  value  by  the  labor  of  the  original 
wrong-doer  in  cutting  them,  and  the  expense 
of  transporting  them  to  Anoka,  the  plaintiff 
is  not  entitled  to  recover  the  enhanced  value, 
that  is,  that  he  is  not  entitled  to  recover  the 
full  value  at  the  time  and  place  of  conver- 
sion." 

That  was  a  case,  like  this,  where  the  de- 
fendant was  the  innocent  purchaser  of  the 
logs  from  the  willful  wrong-doer,  and  where, 
as  in  this  case,  the  transportation  of  them  to 
a  market  was  the  largest  item  in  their  value 
at  the  time  of  conversion  by  defendant;  but 
the  court  overruled  the  proposition  and  af- 
firmed a  judgment  for  the  value  at  Anoka, 
the  place  of  sale.  To  establish  any  other 
principle  in  such  a  case  as  this  would  be 
very  disastrous  to  the  interest  of  the  public 
in  the  immense  forest  lands  of  the  govern- 
ment. It  has  long  been  a  matter  of  com- 
plaint that  the  depredations  upon  these  lands 
are  rapidly  destroying  the  finest  forests  in 
the  world.  Unlike  the  individual  owner, 
who,  by  fencing  and  vigilant  attention,  can 
protect  his  valuable  trees,  the  government 
has  no  adequate  defense  against  this  great 
evil.  Its  liberality  in  allowing  trees  to  be  cut 
on  its  land  for  mining,  agricultural,  and  oth- 
er specified  uses,  has  been  used  to  screen 
the  lawless  depredator  who  destroys  and 
sells  for  profit.  To  hold  that  when  the  gov- 
ernment finds  its  own  property  in  hands  but 
one  remove  from  these  willful  trespassers, 
and  asserts  its  right  to  such  property  by  the 
slow  processes  of  the  law,  the  holder  can 
set  up  a  claim  for  the  value  which  has  been 
added  to  the  property  by  the  guilty  party  in 
the  act  of  cutting  down  the  trees  and  remov- 
ing the  timber,  is  to  give  encouragement 
and  reward  to  the  wrong-doer,  by  providing 
a  safe  market  for  what  he  has  stolen  and 
compensation  for  the  labor  he  has  been  com- 
pelled to  do  to  make  his  theft  effectual  and 
pi'ofitable. 

We  concur  with  the  circuit  judge  in  this 
case,  and  the  judgment  of  the  circuit  court 
is  affirmed. 


402 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


GRIGGS  V.  DAY  et  al. 

(32  N.  E.  612,  136  N.  Y.  152.) 

Court  of  Appeals  of  New  York.    Nov.  29, 
1S92. 

Appeal  from  superior  court  of  New  York 
City,  general  term. 

Action  by  Clark  R.  Griggs  against  Mel- 
ville C.  Day  and  another,  as  executors  of 
Cornelius  K.  Garrison,  for  an  accounting 
for  transactions  had  between  plaintiff  and 
said  Garrison.  From  a  judgment  of  a  ref- 
eree both  parties  appeal.  For  former  re- 
ports, see  11  N.  Y.  Supp.  8S5,  12  N.  Y.  Supp. 
958,  IS  N.  Y.  Supp.  790,  and  19  N.  Y.  Supp. 
1019.     Reversed. 

Melville  C.  Day  and  Esek  Cowen,  for  ap- 
pellants.    John  H.  Post,  for  respondent. 

EARL,  C.  J.  This  action  was  brought 
against  Cornelius  K.  Garrison,  since  deceas- 
ed, for  an  accounting.  It  was  refeiTcd  to 
a  referee,  and  he  ordered  judgment  in  favor 
of  the  plaintiff  for  upwards  of  $188,000. 
The  record  is  very  voluminous,  and  in  the 
briefs  submitted  and  the  arguments  of  coun- 
sel many  questions  of  law  and  fact  were 
presented  for  our  consideration.  A  careful 
study  of  the  record  has  satisfied  me  that  the 
judgment  appealed  from  is  both  illegal  and 
unjust.  In  September,  1879,  the  plaintiff 
entered  into  a  contract  with  the  Wheeling 
&  Lake  Erie  Railroad  Company,  an  Ohio 
corporation,  for  the  construction  and  equip- 
ment of  its  line  of  railroad  in  that  state 
according  to  the  specifications  and  upon  the 
terms  and  conditions  mentioned  in  the  con- 
tract. Bj'  one  of  the  provisions  of  the  con- 
tract the  railroad  company  was  "to  furnish 
the  contractor  available  subscriptions,  or  pro- 
ceeds thereof,  and  aid,  to  the  amount  of 
$4,000  per  mile  of  main  track,  branches, 
and  sidings,  or  so  much  as  may  be  neces- 
sary to  furnish  right  of  way,  grade,  bridge, 
and  tie  said  railroad  between  Hudson's  and 
Martin's  Ferry,"  a  distance  of  143  miles,  and 
"to  use  its  best  endeavors  to  secure  for  the 
contractor  available  subscriptions  and  aid 
to  the  extent  of  $4,000  per  mile,  or  so  much 
as  may  be  necessary,"  for  a  similar  pur- 
pose, as  to  the  balance  of  the  road,  a  distance 
of  58  miles.  For  the  performance  of  this 
contract,  besides  the  aid  to  be  furnished 
as  above  stated,  the  plaintiff  was  to  receive 
bonds  and  stock  of  the  company.  He  was 
without  financial  ability,  and  he  applied  to 
Garrison  for  financial  aid  to  enable  him  to 
perform  his  contract;  and  upon  his  appli- 
cation Garrison,  from  time  to  time,  advanc- 
ed him  large  sums  of  money,  amounting  In 
all,  besides  interest,  to  nearly  $4,500,000.  For 
the  money  so  advanced  the  plaintiff  as- 
signed and  delivered  to  Garrison  as  collat- 
eral security  his  construction  contract  and 
bonds  and  stock  of  the  company,  and  some 
of  it  was  repaid  by  the  sales  to  him  of  bonds 


and  stock.  In  1SS2  the  plaintiff  received 
from  the  company  for  extra  work  claimed 
to  have  been  done  by  him,  and  on  account 
of  its  failure  to  perform  the  portions  of  the- 
contract  above  quoted,  its  promissory  notes, 
amounting  to  $1,949,710.72,  and  they  were 
delivered  by  him  to  Garrison  for  moneys  ad- 
vanced and  to  be  advanced  by  him  for  the 
construction  of  the  road.  Garrison  held 
these  notes  until  May,  1883,  when  there  was 
due  to  him  for  moneys  advanced  to  the 
plaintiff  for  the  construction  of  the  road 
nearly  $2,.500,000.  He  then  received  from  the 
company  2,280  of  its  second  mortgage  bonds 
of  the  denomination  of  $1,000,  at  75  cents 
on  the  dollar,  amounting,  with  some  interest, 
to  $1,73G,G00,  to  ai)ply  upon  his  claims,  and 
he  then  surrendered  to  it  all  of  the  above- 
mentioned  promissory  notes,  and  they  were 
canceled.  On  the  same  day  he  caused  an 
original  entry  to  be  made  in  his  journal,— 
one  of  his  account  books,— as  follows:  "This 
amount  of  notes  and  interest,  $2,002,643.13, 
taken  from  conti-actor  at  75  per  cent.,  $1,- 
546,982.35."  He  then  charged  the  company 
in  his  books  of  account  with  the  whole 
amount  of  the  notes  and  interest,  and  gave 
it  credit  for  $1,736,000,— the  price,  including 
interest,  at  which  he  took  the  second  mort- 
gage bonds;  and  he  credited  the  plaintiff" 
with  the  sum  of  $1,540,982.35.  The  differ- 
ence between  the  total  amount  due  upon  the 
notes  and  the  amount  allowed  by  him  for 
the  second  mortgage  bonds  was  $326,043.13, 
and  thus  he  had  in  his  hands,  not  used  for 
the  payment  of  the  bonds,  the  notes  to  that 
amount,  which  he  then  surrendered  to  the 
company  without  any  consideration  what- 
ever; and,  as  the  referee  found,  he  elected 
to  look  to  the  company  as  his  debtor  on 
open  account  for  that  amount.  The  referee 
also  found  that  by  reason  of  the  surrender 
of  the  notes  in  consideration  of  the  purcliase 
of  the  bonds,  and  by  reason  of  the  surrender 
of  the  balance  of  the  notes,  and  by  reason 
of  the  election  before  mentioned.  Garrison 
discharged  the  indebtedness  of  the  plaintiff' 
to  him  to  the  amount  of  the  face  value  of 
the  notes  at  the  time  of  the  surrender.  He 
also  found  that  the  plaintiff's  rights  as 
pledgor  in  the  construction  contract,  and  in 
the  bonds,  stock,  and  other  property  trans- 
ferred to  Garrison  as  collateral  security,  were 
never  cut  oft'  by  foreclosure  of  his  rights,  or 
!  in  any  other  way.  These  facts  having  been 
found  by  the  referee,  he  found,  among  othei- 
conclusions  of  law,  that  the  legal  effect  of 
the  surrender  by  Garrison  to  the  railroad 
company  of  the  promissory  notes  held  by 
him  as  collateral  security  for  moneys  ad- 
vanced to  the  plaintiff",  and  of  the  charge 
by  him  against  the  railroad  company  of  the 
full  amount  of  the  notes  and  interest,  was 
to  relieve  the  plaintiff  from  any  liability  to 
him  for  the  amount  thereof;  and  in  the  ac- 
counting he  charged  Garrison  with  the  full 
amount    of    the    notes,    with    interest.     The 


INJURIES  TO  PERSONAL  I'ROPERTY. 


403 


-only  Question  which  I  deem  it  important 
now  to  consider  is  whether  the  learned 
referee  was  right  in  making  that  charge. 

The  further  fact  must  be  taken  into  con- 
sideration that  the  notes  surrendered  were 
of  no  value  as  against  the  company.  It 
was  utterly  insolvent,  with  property  no 
more  than  sufficient  to  pay  its  first  mort- 
gage bonds.  The  second  mortgage  bonds 
were  absolutely  of  no  intrinsic  value.  The 
referee  held  these  facts  to  be  immaterial, 
and  that,  under  the  circumstances,  Garri- 
son had  made  himself  chargeable  with  the 
full  amount  of  the  notes,  without  reference 
to  their  value.  Such  a  conclusion  is  some- 
what startling,  and  should  not  be  sanctioned 
unless  it  has  support  in  well-recognized 
principles  of  law  or  authorities  which  we  feel 
constrained  to  follow.  The  entries  in  GaiTi- 
son's  books  of  account  in  reference  to  these 
notes  have  very  little  bearing  upon  the  con- 
troversy between  these  parties.  They  were 
private  entries,  made  by  Garrison,  undis- 
closed to  the  plaintiff,  and  without  his  author- 
ity. They  were  important  simply  as  evidence, 
and  are  entitled  to  no  more  weight  than  would 
have  been  the  oral  declarations  or  admissions 
of  Garrison  made  to  any  third  party.  They 
show  what  use  he  made  of  the  notes,  and 
about  that  there  is  no  dispute.  They  did  not 
bind  the  plaintiff,  and  he  has  never,  so  far  as 
appears,  assented  to  them.  They  show  that 
Garrison  intended  to  take  the  notes  at  75 
cents  on  the  dollar,  and  that  he  was  willing 
to  allow  the  plaintiff  that  sum  for  them.  But 
there  was  no  actual  purchase  of  them.  If  tliat 
t'Utry  had  come  to  the  knowledge  of  the  plain- 
tiff, and  he  had  adopted  it,  and  so  notified 
Garrison,  he  could  probably  have  held  him 
to  a  purchase  of  the  notes  for  that  sum.  But 
he  repudiates  that  entry,  and  refuses  to  let 
Garrison  have  the  notes  for  that  sum.  He 
cannot  use  that  entry  to  fasten  upon  him 
a  purchase  of  the  notes  at  their  face  value. 
The  minds  of  the  parties  never  met  upon 
such  a  contract.  Garrison  either  purchased 
the  notes  used  in  escJiange  for  the  bonds  at 
75  per  cent,  of  their  face  value,  or  he  did 
uot  purchase  them  at  all.  Therefore,  as  the 
plaintiff  repudiates  the  purchase  at  the  price 
named,  there  was  no  contract  of  purchase; 
and  as  to  these  notes,  pledged  for  collateral 
security.  Garrison  must  be  held  to  have  wrong- 
fully converted  them  to  his  own  use.  It  would 
make  no  difference  whether  we  consider  these 
notes  as  having  been  exchanged  for  the  bonds, 
or  as  having  been  used  in  payment  for  the 
bonds.  In  either  view,  Garrison  was,  at  most, 
guilty  of  a  conversion  of  them.  As  to  the 
balance  of  the  notes,  which  were  surrendered 
to  the  company  without  any  consideration, 
there  was  simply  a  wrongful  conversion  of 
them.  They  had  no  value  as  obligations 
against  the  company,  and  it  is  preposterous  to 
suppose  that  Garrison  intended  by  the  sur- 
render to  charge  himself  for  their  full  face 
value  against  an  indebtedness  of  the  plaintilT 


to  him  for  money  actually  loaned.  By  the 
surrender  he  did  not  intend  to  release  the 
company  from  its  indebtedness  evidenced  by 
the  notes,  but  he  intended  and  elected  still 
to  hold  the  indebtedness,  evidenced  by  his 
charge  in  open  account  upon  his  books. 
The  obligation  of  the  company  was  not  im- 
paired or  lessened  by  the  transaction,  and  it 
owed  just  as  much  after  it  as  before.  Even 
if  he  made  the  notes  his  own  by  surrender- 
ing them,  there  was  simply  a  conversion  of 
them.  It  is  true  that  he  elected  to  hold  the 
companyashis  debtor  upon  open  account,  just 
as  it  was  his  debtor  before  for  the  same 
amount  evidenced  by  the  notes.  He  did  not 
take  a.  new  debtor,  but  he  retained  and  in- 
tended to  retain  the  same  debtor.  Here 
there  was  no  novation,  and  nothing  resem- 
bling it.  It  usually,  if  not  always,  takes 
three  parties  to  make  a  novation,  and  they 
must  all  concur  upon  sufficient  consideration 
in  making  a  new  contract  to  take  the  place 
of  another  contract,  and  in  substituting  a 
new  debtor  in  the  place  of  another  debtor. 
"Novation"  is  thus  briefly  defined:  "A  trans- 
action whereby  a  debtor  is  discharged  from 
his  liability  to  his  original  creditor  by  con- 
tracting a  new  obligation  in  favor  of  a 
new  creditor  by  the  order  of  the  original 
creditor."  1  Pars.  Cont.  217.  Here  there 
was  no  element  answering  to  this  defini- 
tion. There  was  no  intention  to  make  a  no- 
vation, no  consideration  for  a  new  contract, 
no  concurrence  of  the  three  or  even  of 
the  two  parties.  So  we  reach  the  conclusion 
as  to  all  the  notes  that  Garrison,  by  their 
surrender,  made  himself  liable  for  a  wrong- 
ful conversion  of  them  to  his  own  use.  and 
thus  became  responsible  to  the  plaintiff  for 
the  damages  caused  by  the  wrong;  and  the 
question  is,  what  were  such  damages?  The 
answer  must  be,  the  value  of  the  notes  con- 
verted. There  can  be  no  other  measure,  as 
that  measures  the  entire  damage  of  the 
plaintiff  absolutely.  As  to  the  notes  surren- 
dered for  the  bonds,  the  plaintiff  could  have 
elected  to  take  the  bonds  or  their  value; 
but  this  he  refuses  to  do,  as  the  bonds  have 
no  value,  and  thus  he  is  confined  absolutely 
to  the  value  of  the  notes. 

Now,  how  does  the  case  stand  upon  au- 
thority? In  Garlick  v.  James,  12  Johns.  14o, 
the  plaintiff  deposited  with  the  defendant  a 
promissory  note  of  a  third  person  as  collat- 
eral security  for  a  debt,  and  the  defendant, 
without  the  knowledge  or  consent  of  the 
plaintiff,  compromised  with  the  maker  of  the 
note,  and  surrendered  the  note  to  him  upon 
payment  of  one  half  of  the  face  thereof.  It 
was  found  that  the  maker  was  at  the  time 
of  the  compromise  abundantly  able  to  pay 
the  full  amount  of  the  note,  and  under  such 
circumstances  it  was  properly  held  that  the 
pledgee  was  liable  for  the  balance  unpaid  up- 
on the  note.  In  Hawks  v.  Hinchcliff,  17 
Barb.  492,  the  plaintiff  sued  the  defendant 
upon  an  account  for  merchandise  delivered, 


404 


da.ma(j;es  for  injuries  to  property. 


and  the  defeudaut  showed  that  the  phiintifl; 
look  two  notes  for  the  amount  of  the  ac- 
count as  collateral  security  for  the  payment 
thereof;  that  he  ti'ansf erred  one  of  the  notes 
to  a  pei-son,  who  recovered  judgment  there- 
on against  the  makers,  and  afterwards  as- 
signed the  judgment  to  one  Prindle;  that  he 
recovered  judgment  upon  the  other  note,  and 
assigned  that  to  Prindle;  and  it  appeared 
that  the  defendants  in  those  judgments  had 
never  paid  the  notes  or  the  judgments.  It 
was  held  that  the  plaintiff,  the  pledgee,  could 
not  recover  upon  his  account.  It  was  not 
shown  upon  what  consideration  the  notes 
and  the  judgments  were  transferred  by  the 
pledgee,  or  tliat  at  the  time  of  the  transfer 
the  makers  of  the  notes  were  not  perfectly 
solvent.  The  plaintift:  there  relied  upon  the 
simple  fact  that  the  notes  and  judgments 
were  not  paid.  Upon  this  state  of  the  facts 
tlie  court  held  that  the  presumption,  nothing 
appearing  to  the  contrary,  was  that  the  note 
and  judgments  were  transfen-ed  by  the  plain- 
tiff for  the  full  amount  appearing  to  be  due 
upon  them,  and  hence  he  was  charged  with 
the  full  amount.  There  are  some  broad  ex- 
pressions contained  in  the  opinion,  which, 
Avhen  isolated  from  the  facts  of  the  case, 
tend  to  give  some  countenance  to  the  plain- 
tiff's contention  here.  In  Vose  v.  Railroad 
Co.,  50  N.  Y.  369,  it  was  held  that  a  wrong- 
ful sale  by  a  creditor  of  collateral  securities 
placed  in  his  hands  by  the  principal  debtor 
does  not,  per  se,  discharge  even  a  surety 
for  the  debt  (much  less  the  principal  debtor) 
in  toto,  but  that  by  such  sale  the  creditor 
makes  the  securities  his  own  to  the  extent 
of  discharging  the  surety  only  to  an  amount 
equal  to  their  actual  value.  In  Potter  v. 
Bank,  28  N.  Y.  041;  Booth  v.  Powers,  5G  N. 
Y.  22;  and  Thayer  v,  Manley,  73  N.  Y.  305, 
— it  was  held  that  in  an  action  to  recover 
damages  for  the  conversion  of  a  promissory 
note  the  amount  appearing  to  be  unpaid 
thereon  at  the  time  of  the  conversion,  with 
interest,  is  prima  facie  the  measure  of  dam- 
ages, but  that  the  defendant  has  the  right  to 
show  in  reduction  of  damages  the  insolven- 
cy or  inability  of  the  maker,  or  any  other 
fact  impugning  the  value  of  the  note.  In 
Bank  v.  Gordon,  8  N.  H.  66,  where  the  bank 
had   received  a  note   as  collateral   security. 


and  had  subsequently,  without  the  consent  of 
the  pledgor,  compromised  it  by  receiving  the 
one  half  thereof  from  the  maker,  it  was 
held  that  the  bank  was  bound  to  credit  the 
pledgor  with  only  the  amount  received  upon 
compromise,  upon  proof  that  the  compromise 
was  advantageous,  and  that  the  maker  waa 
insolvent,  and  unable  to  pay  the  balance;  and 
the  general  mle  was  laid  down  which  was 
announced  in  the  cases  last  above  cited.  If 
the  pledgee  of  the  note  of  an  insolvent  mak- 
er may  surrender  it  upon  a  compromise  for 
one  dollar  without  being  made  liable  for 
more  than  he  receives,  upon  what  conceiva- 
ble principle  can  a  pledgee  be  held  for  the 
face  value  of  a  worthless  note  by  surren- 
dering it  without  any  consideration  whatev- 
er? If  one  intnisted  with  a  note  as  agent, 
or  holding  it  as  pledgee,  loses  it  by  his  care- 
lessness, or  even  willfully  destroys  it,  he  can, 
in  an  action  against  him  by  the  principal  or 
pledgor,  be  held  liable  only  for  the  value  of 
the  note.  If  Garrison  had  broken  into  the 
plaintiff's  safe  and  taken  these  notes  with- 
out any  right  whatever,  in  an  action  for 
their  conversion  the  plaintiff"  could  have  re- 
covered against  him  as  damages  only  the  ac- 
tual, not  the  face,  value  of  the  notes.  I 
need  go  no  further.  Other  illustrations  are 
not  needed.  Our  attention  has  been  called 
to  no  case  in  law  or  equity  which  upholds 
the  plaintift"'s  contention  as  to  these  notes. 
I  should  be  greatly  surprised  to  find  any, 
and  do  not  believe  there  are  any.  I  have 
assumed,  without  a  careful  examination  of 
the  defendants'  objections  to  the  notes,  that 
they  were  valid,  and  properly  issued  by  the 
company  for  their  full  amount.  I  have  also 
assumed,  without  examining  the  matter,  that 
upon  this  record  we  must  hold  against  the 
contention  of  the  defendants  that  the  sec- 
ond mortgage  bonds  took  tlie  place  of  the 
notes  given  for  them,  and  were  held  in  their 
stead  as  collateral  security.  Statements 
made  upon  the  argument  by  the  counsel  for 
the  appellants  render  it  unnecessary  for  us 
to  consider  any  other  objections  to  the  judg- 
ment, and  for  the  reasons  stated  the  judg- 
ment should  be  reversed,  and  new  trial  grant- 
ed, costs  to  abide  the  event  All  coucm'; 
GRAY,  J.,  in  result. 
Judgment  reversed. 


INJURIES  TO  PERSONAL  PROPERTY. 


405 


DIMOCK  et  al.  v.  UNITED  STATES  NAT. 
BANK. 

(25  Atl.  926,  55  N.  J.  Law,  296.) 

Court  of  Errors  and  Appeals  of  New  Jersey. 
Feb.  6,  1893. 

Error  to  circuit  court,  Union  county;  Van 
Sycliel,  Judge. 

Action  on  a  note  by  the  United  States  Na- 
tional Bank  against  Anthony  W.  Dimock 
and  others.  Plaintiff  had  judgment,  and 
defendants    bring   error.     Affirmed. 

The  facts  appear  in  the  following  state- 
ment by  DEPUE,  J.: 

This  suit  was  brought  upon  a  note  of  which 
the  following  is  a  copy: 

•'^50,000.  New  York,  April  15,  1884.  Four 
months  after  date,  without  grace,  we  prom- 
ise to  pay  to  the  United  States  National 
Bank,  or  order,  at  its  othce  in  the  city  of 
New  York,  the  sum  of  fifty  thousand  oo/ioo 
for  value  received,  with  interest  at  the  rate 
of  six  per  cent,  per  annum  payable;  having 
deposited  herewith,  and  pledged  as  collater- 
al security  to  the  holder  thereof,  the  fol- 
lowing property,  viz.:  200  shares  Bankers' 
&  Merchants'  Tel.  stock;  200  shares  Mis- 
souri Pacific  R.  R.  stock;  200  shares  Dela- 
ware, Lac.  &  W.  R.  R.  stock;  15  shares  Cen- 
tral Iowa,  111.  Div.  1st  bonds,— with  author- 
ity to  the  holder  hereof  to  sell  the  whole  of 
said  property,  or  any  part  thereof,  or  any 
substitute  therefor,  or  any  additions  theve- 
to,  at  any  brokers'  board  in  the  city  of  New 
York,  or  at  public  or  private  sale  in  said 
city  or  elsewhere,  at  the  option  of  such  hold- 
er, on  the  nonperformance  of  any  of  the 
promises  herein  contained,  without  notice  of 
Amount  claimed  to  be  due,  without  demand 
of  payment,  without  advertisement,  and 
without  notice  of  the  time  and  place  of  sale, 
each  and  every  of  which  is  hereby  express- 
ly waived. 

"It  is  agreed  that,  in  case  of  depreciation 
in  the  market  value  of  the  property  hei*eby 
pledged,     (which     market     value     is     now 

^ ,)  or  which  may  hereafter  be  pledged 

for  this  loan,  a  payment  shall  be  made  on 
account  of  this  loan  upon  the  demand  of  the 
holder  hereof,  so  that  the  said  market  value 

shall  always  be  at  least per  cent,  more 

than  the  amount  unpaid  of  this  note;  and 
that,  in  case  of  failure  to  make  such  pay- 
ment, this  note  shall,  at  the  option  of  the 
holder  hereof,  become  due  and  payable 
forthwith,  anything  hereinbefore  expressed 
to  the  contrary  notwithstanding;  and   that 

the  holder  may  immediately  reimburse 

by  sale  of  the  said  property  or  any  part 
thereof.  In  case  the  net  proceeds  arising 
from  any  sale  hereunder  shall  be  less  than 

the   amount   due   hereon,   promise   to 

pay  to  the  holder,  forthwith  after  such  sale, 
the  amount  of  such  deficiency,  with  legal 
interest. 

"It  is  further  agreed  that  any  excess  in 
the  value  of  said  collaterals,  or  sui-plus  fi'om 
the    sale    thereof    beyond    the    amount   due 


hereon,  shall  be  applicable  upon  any  other 
note    or    claim    held    by   the   holder   hereof 

against  now   due  or  to   become  due, 

or  that   may   be  hereafter  contracted;   and 

that,  if  no  other  note  or  claim  against 

is  so  held,  such  surplus,  after  the  payment 

of  this  note,   shall  be  returned  to  or 

assigns. 

"It  is  further  agreed  that,  upon  any  sale 
by  virtue  hereof,  the  holder  hereof  may  pur- 
chase the  whole  or  any  part  of  such  prop- 
erty discharged  from  any  right  of  redemp- 
tion, which  is  hereby  expressly  released  to 
the  holder  hereof,  who  shall  retain  a  claim 
against  the  maker  hereof  for  any  deficiency 
arising  upon  such  sale.  A.  W.  Dimock  & 
Co." 

The  other  facts  appear  in  the  opinion  of 
the  court. 

Bradbury  C.  Chetwood,  for  plaintiff  in  er- 
ror. Edward  A.  &  William  T.  Day,  for  de- 
fendants in  error. 

DEPUE,  J.  (after  stating  the  facts).  The 
note  on  which  this  suit  was  brought  was 
in  terms  made  payable  in  four  months  after 
date.  It  became  due  August  15,  1884.  This 
suit  w^as  brought  May  21,  1891.  The  suit 
was  in  all  respects  regular,  and  its  regu- 
larity was  in  no  wi?e  dependent  upon  that 
paragraph  in  the  pledge  of  securities  which, 
upon  certain  conditions,  accelerated  the  ma- 
turity of  the  note,  and  made  the  money  pay- 
able at  a  time  earlier  than  that  named  on 
its  face.  The  securities  pledged  for  the  pay- 
ment of  the  note  were  sold  by  the  plaintiff 
en  the  15th  of  May,  1884,  as  the  note  matured 
in  the  following  August.  From  the  sale  the 
sum  of  $45,456.26  was  realized,  leaving  a 
balance  due  on  the  note  of  $4,456.25,*  for 
which  the  plaintiff  claimed  judgment  The- 
defendants'  contention  was  that  the  sale  in 
May  was  unauthorized,  and  amounted  in 
law  to  a  conversion.  In  all  other  respects 
the  sale  was  in  conformity  with  the  power. 
On  the  theory  that  the  sale  at  the  time  in 
question  was  unauthorized,  the  defendants 
contended  that  they  were  entitled  to  have 
the  value  of  the  securities  allowed  to  them 
at  their  highest  market  price  between  the 
conversion  and  the  time  of  the  ti'ial.  The 
defendants  gave  in  evidence  the  fact  that  in 
December,  1886,  and  April  and  May,  1887, 
these  securities  were  worth  in  the  market 
the  sum  of  $56,860,  sufficient  to  pay  the 
plaintiff's  note,  and  leave  a  balance  of  $6,- 
860  due  the  defendants.  The  defendants' 
claim  was  disallowed,  and  judgment  given 
for  the  plaintiff  for  the  sum  of  $4,456.25, 
being  the  balance  due  on  the  note  after  cred- 
iting on  it  the  proceeds  of  sale  with  interest. 
The  case  was  tried  by  the  judge,  a  jury  be- 
ing waived.  A  general  exception  was  taken 
to  his  finding.  Upon  such  an  exception,  if 
there  be  evidence  to  sustain  the  finding,  the 
exception  will  not  be  sustained. 

The  plaintiff  is  a  national  bank,  located  in 
the  city  of  New  York.     The  defendants,  at 


i06 


DAMAGES  FOR  INJURIES  TO  PROPERTY, 


the  time  of  these  transactious,  were  bankers 
and  brokers  in  New  York.  The  debt  for 
which  the  note  was  given  was  a  loan  of  $50,- 
000  to  the  defendants.  The  form  of  the  con- 
tract pledging  securities  for  the  repayment 
of  loans  is  such  as  is  usual  in  that  city.  It 
must  be  assumed  that  the  parties  were 
aware  of  the  effect  of  the  terms  of  such  con- 
tracts, and  with  the  couree  of  dealing  in  that 
market  AA'ith  securities  pledged  as  security 
for  loans. 

By  the  lirst  paragraph  in  the  defendants' 
contract  the  plaintiff  was  authorized  to  sell 
the  securities  at  any  brokers'  board  in  the 
city  of  New  York,  or  at  public  or  private  sale 
in  said  city  or  elsewhere,  at  its  option,  on 
the  nonperformance  of  any  of  the  defend- 
ants' promises  therein  contained,  without 
any  notice  of  the  time  and  place  of  sale. 
This  contract  w'as  embodied  in  and  made 
part  of  the  note  itself,  and  the  promise  to 
pay  in  the  note  was  one  of  the  promises  on 
the  nonpayment  of  which  a  sale  was  author- 
ized. The  sale  was  made  through  a  firm  of 
brokers  who  were  members  of  the  stock  ex- 
change in  New  York  city.  There  is  no 
foundation  in  the  evidence  for  complaint  of 
the  manner  or  fairness  with  which  the  sale 
was  conducted. 

The  power  of  the  plaintiff  to  sell  the  se- 
curities before  tlie  four  months  named  in  the 
note  had  expired  depends  upon  the  con- 
struction and  effect  of  the  second  paragraph 
of  the  contract.  There  was  some  discussion 
on.  the  argument  as  to  the  right  to  fill  the 
blanks  in  that  paragraph.  The  evidence  was 
not  suflicient  to  justify  the  court  in  filling 
the  blanks.  The  contract  will  be  construed 
in  the  condition  it  w-as  in  when  it  was  de- 
livered to  the  plaintiff.  In  this  paragraph 
It  is  provided  that,  in  case  of  a  depreciation 
in  the  market  value  of  the  property  pledged, 
the  defendants  should,  on  demand  by  the 
holder  of  the  note,  make  a  payment  thereon, 
so  that  the  market  value  of  the  securities 
should  always  be  more  than  the  amount  of 
the  debt;  and  that,  in  case  of  the  failure  of 
the  defendants  to  make  such  payment,  the 
note  should,  at  the  payee's  option,  become 
due  forthwith;  and  that  the  plaintiff  might 
immediately  reimburse  itself  by  the  sale  of 
the  property  or  any  part  thereof;  and  that  in 
case  the  net  proceeds  of  such  sale  should  be 
less  than  the  amount  then  due  on  the  note, 
the  defendants  should  forthwith,  after  such 
sale,  pay  the  amount  of  such  deficiency,  with 
interest.  The  power  to  sell  the  securities  be- 
fore the  maturity  of  the  note,  according  to 
its  terms,  was  made  to  depend  upon  the  con- 
currence of  two  conditions,— the  depreciation 
in  the  market  value  of  the  property  pledged; 
and  the  failure  of  the  defendants,  after  de- 
mand, to  make  a  payment  on  account  of  the 
loan,  so  that  the  market  value  of  the  secu- 
rities pledged  should  be  more  than  the 
amount  due  on  the  note.  The  proof  was 
that  on  the  6th  of  May,  1S84,  the  firm  of 
Grant,  Ward  &  Co.  failed,  and  the  Marine 


Bank  closed  its  doors.  On  the  14th,  the  Met- 
ropolitan Bank  closed  its  doors,  and  a  num- 
ber of  leading  bankers  failed.  These  fail- 
ures created  a  panic  in  the  money  market, 
and  a  great  depreciation  in  the  market  value 
of  all  commercial  securities.  Early  on  the 
morning  of  the  15th,  the  defendants'  embar- 
rassments led  them  to  an  assignment  foi" 
the  benefit  of  their  creditors.  It  fully  ap- 
peared that,  at  the  commencement  of  busi- 
ness hours  on  the  morning  of  May  15th,  the 
securities  pledged  had  so  depreciated  that 
their  market  value  was  considerably  below 
the  amount  of  the  plaintiff's  debt.  Under  a 
pledge,  with  a  power  of  sale  such  as  exists 
in  this  case,  the  pledgee,  unless  resti^ained 
by  other  conditions  in  the  contract  of  pledge, 
has  a  right  to  sell  whenever  the  condition  of 
the  market  makes  it  prudent  for  him  to  do 
so  for  the  protection  of  his  interests.  The 
other  condition  was  that  a  demand  should 
be  made  upon  the  defendants,  and  that,  up- 
on such  demand,  the  defendants  should  pay 
on  account  of  the  note  a  sum  sufficient  to  re- 
duce the  amount  due  below  the  market  value 
the  securities  then  had.  The  case  shows 
that,  at  the  beginning  of  business  hours  on 
the  morning  of  the  15th,  two  notices  were 
served  on  the  defendants.  One  of  these  no- 
tices was  in  form  signed  by  the  cashier  of 
the  bank,  in  these  words:  "I  hereby  call 
your  loan  of  April  15,  1884,  for  ?.50,000." 
This  notice  was  plainly  not  a  demand  in  con- 
formity with  the  condition  expressed  in  the 
contract  A  depreciation  in  the  market  val- 
ue of  the  securities  pledged  did  not  convert 
the  loan,  which  was  made  on  four  months' 
time,  into  a  call  loan.  That  condition  of  af- 
fairs imposed  upon  the  defendants  the  obli- 
gation not  to  pay  the  note  in  full,  but,  by  a 
payment  upon  it,  to  reduce  the  loan  until 
the  amount  remaining  due  was  under  the 
market  value  of  the  securities.  It  appeared 
in  evidence  that  the  other  notice  served  was 
"a  demand  for  the  payment  on  account  of 
the  loan  to  a  degi-ee  corresponding  to  the 
depreciation  of  the  securities."  Neither  the 
original  notice  nor  a  copy  was  produced. 
The  witness  who  testified  upon  this  subject 
was  not  able  to  state  the  amount  of  the  de- 
preciation, but  he  added  that  such  deprecia- 
tion was  known  to  both  the  borrower  and 
lender.  The  object  of  a  demand  in  a  con- 
tract of  this  sort  is  to  give  the  party  an 
opportunity  to  comply  with  the  terms  of  his 
contract,  and  preserve  his  securities  from 
sale  before  the  expiration  of  the  time  for 
which  the  loan  was  negotiated;  and  it  would 
be  reasonable  that,  in  making  the  demand, 
the  party,  before  he  is  put  In  default,  should 
have  been  made  aware  of  the  extent  of  the 
depreciation,  approximately  at  least,  and  the 
sum  required  to  be  paid  to  save  his  rights 
should  be  specified.  If  the  case  rested  solely 
on  the  sufficiency  of  the  demand  made,  I 
should  have  some  hesitation  in  sustaining- 
this  judgment. 
Assuming  that  tlie  sale  of  the  securities  in 


INJURIES  TO  PERSONAL  PROPERTY. 


40 


May  was  unauthorized,  it  was  a  convei'sion 
of  the  property,  though-  the  sale  was  made  iu 
good  faith.     Nevertheless,  the  judge's  find- 
ing, and  the  rule  of  damages  applied,  were 
correct.     The  general  rule  is  that  the  meas- 
ure of  damages  for  conversion  is  the  value 
of  the  property  at  the  time  of  the  conversion. 
This  rule  has  been  modified  with  respect  to 
the  conversion  of  stocks  and  bonds,  commer- 
cial securities  vendible  in  the  market,   the 
market  value  of  which  is  liable  to  frequent 
and  great  fluctuations,  caused  by  the  depres- 
sion and  inflation  of  prices  in  the  market. 
In  Markham   v.  Jaudon,  41  N.   Y.   235,  the 
court  of  appeals  held  that  as  between  a  cus- 
tomer  and    his    broker,    holding    stock    pur- 
chased for  the  foi-mer  which  had  been  pledg- 
ed  as   security   for  advances    made   in    the 
l)urchase,  the  measure  of  damages  for  the 
conversion  by  an  unauthorized  sale  was  the 
highest  market  price  between  the  time  of 
the  conversion  and  the  trial.     Relying   upon 
this  case,  the  defendants  put  in  evidence  no 
proof  of  value  except  the  market  value  in 
December,  1886,  and  April  and  May,  1S87. 
But  Markham  v.  Jaudon  has  been  overruled 
by  a  series  of  cases  in  the  New  York  courts, 
and  the  rule  adopted  that  in  such  cases  the 
principal    may    disaffirm  the  sale,   and  that 
the  advance  in  the  market  price  from  the 
time  of  sale  up  to  a  reasonable  time  to  re- 
place it  after  notice  of  the  sale  was  the  pi'op- 
er  measure  of  damages.     Baker  v.   Drake, 
53  N.  Y.  211,  66  N.  Y.  518;   Gruman  v.  Smith, 
81  N.   Y.  25;    Colt  v.   Owens,  90  N.  Y.  3G8. 
These  decisions  were  made  in  cases  where 
the  transactions  were  dealings  between  the 
customer  and  broker  in.  the  purchase   and 
sale  of  stocks  on.  a   margin.     Subsequently 
the  same  rule  was  applied  where  the  owner 
of  stock  for  which  he  had  paid  full  value, 
and  which  he  held  as  aB  investment,  put  it 
in  the  hands  of  a  broker  as  collateral  securi- 
ty for  the  debt  of  a  third  person,  upon  condi- 
tion that  it  should  not  be  sold  for  six  months, 
the  stock  having  been  sold  without  the  own- 
er's authority  before  the  expiration  of  that 
time.     Under  the  decisions  of  the  New  York 
courts,  reasonable  time,  where  the  facts  are 
undisputed,    is   a   question   of    law    for    the 
court.     Wright  v.  Bank,   110  N.   Y.  238,  18 
N.  E.  79.     In  Colt  v.  Owens,  90  N.  Y.  3G8, 
30  days  after  the  sale  and  notice  of  it  was 
regarded  as    reasonable  time.     The   I'ule  of 
the  highest  intermediate  value  between  the 
time  of  the  conversion  and  the  time  of  the 
trial  has  been  rejected  in  the  supreme  court 
of  the  United  States  as  the  proper  measure 
of  damages,  and  the  rule  that  the  highest  in- 
termediate  value  between  the  time  of  the 
conversion  and  a  reasonable  time  after  the 
oAvner  has  received  notice  of  it  was  adopted 
as  the  correct  view  of  the  law;   for  the  rea- 
son,  as   expressed  by  ISIr.   Justice   Bradley, 
that  more  transactions  of  this  kind  arise  in 
the  state  of  New  York  than  in  all  other  parts 
of  the  country,  and  that  the  New  York  rule, 
as  Anally  settled  by  its  court  of  appeals,  has 


the  most  reason  in  its  favor.     Galigher  v. 
Jones,  129  U.   S.  194,  9  Sup.   Ct.  335.     The 
principle  upon  which  this  doctrine  rests  is 
the  consideration  that  the  general  rule  that 
in  an  action  for  a   conversion   the  market 
value  of  the  property  at  the  time  of  the  con- 
version woiild  afford  an  inadequate  remedy, 
or  rather  no  remedy  at  all,  for  the  real  in- 
jury, which  consisted  in  the  wrongful  sale 
of  property  of  a  fluctuating  value  at  an  un- 
favorable time,  chosen  by  the  broker  himself; 
hence  the  cost  of  replacing  the  securities  by 
a  purchase  in  the  market,  allowing  a  reason- 
able time  for  that  puii)ose,  has  been  regard- 
ed as  the  proper   measure  of  damges.     As 
was  said  by  Mr.  Justice  Bradley  in  Galigher 
V.    Jones:      "A    reasonable   time    after    the 
wrongful  act  complaiued  of  is  to  be  allowed 
to  the  party  injured  to  place  himself  in  the 
position  he  would  have  been  in  had  not  his 
rights  been  invaded."     The  general  rule  that 
the  market  value  at  the  time  of  the  conver- 
sion is  the  measure  of  damages  being  found 
to  be  impracticable  in  these  cases,  and  hav- 
ing been  abandoned,  the  effort  has  been  to 
obtain  some  rule  by  Avhlch  substantial  jus- 
tice, as   near  as  may  be,  may  be  attained. 
In  Euslaud  the  market  value  at  the  time  of 
the  trial  appears  to  be  the  meiisure  of  dam- 
ages.    Owen    V.    Routh,    14    C    B.    327.     In 
some  of  the  sister  states  the  rule  of  the  high- 
est intermediate  price  before  the  trial  has 
been  adopted.     In  New  Yoi-k,  and  in  most  of 
the  sister  states,  as  well  as  in  the  supreme 
court  of  the  United  States,  the  formula  which 
has  been  called  the  "New  York  Rule"   has 
been  adopted,  and  is  the  rule  which  will  ac- 
complish the  most  complete  justice  in  the  or- 
dinary transactions  between  the  broker  and 
his  customer  dealing  in  stocks  when  an  un- 
authorized sale  is  the  act  of  conversion.     In 
such  cases  the  customer  has  a  choice  of  rem- 
edies.    He  may  claim  the  benefit  of  the  .sale. 
and  take  the  proceeds;    he  may  require  the 
broker  to  replace  the  stock,  or  replace  it  him- 
self, and  charge  the  broker  for  the  loss;    or 
he  may   recover   the  advance  in   the  market 
price  up  to  a  reasonable  time  within  which 
to  replace  it  after  notice  of  the  sale.     Cook, 
Stock  &  S.  460.     But  where  stocks  and  ne- 
gotiable securities  are  pledged  as  collateral 
security  for  the  payment  of  a  debt  to  be- 
come due  and  payable  on  a  future  day,  an- 
other element  enters  into  the  consideration 
of  the  compensation  to  be  awarded  to  the 
owner  of  the  securities  for  the  unauthorized 
sale  of  them  before  the  debt  matures.     Up- 
on such   a  bailment  it   is  the   duty   of  the 
pledgee  to  keep  the  securities  in  hand  at  all 
times  ready  to  be  delivered  to  the  pledgor  on 
the  payment  of  the  debt.     Cook,  Stock  &  S. 
469-471.     An   unauthorized    sale  before  the 
debt  matures  is  a  convei-sion,  for  which  the 
pledgor   may   have   remedy   in   the   manner 
above  mentioned.    But  the  sale  may  be  made 
when  the  market  value  is  depreciated,  and 
the  market  with  a  downward  tendency.    The 
market  may  revive,  and  prices  be  enhanced 


408 


DAMAGES  P'OR  INJUUIKS  TO  PROPERTY. 


before  the  debt  matures.  Under  such  cir- 
cumstauces,  a  rule  that  the  pledgor  shall  be 
at  liberty  to  elect  to  treat  the  unauthorized 
sale  as  a  conversion,  or  to  hold  the  pledgee 
for  the  breach  of  his  duty  to  keep  the  secu- 
rities uutil  the  maturity  of  the  debt,  and 
recover  as  damages  the  market  value  of  the 
securities  as  of  that  time,  would  commend 
itself  in  reason  and  justice.  As  applied  to 
the  facts  of  this  case,  this  rule  would  be 
eminently  just.  The  plaintiff  in  good  faith 
sold  the  securities  in  the  manner  authorized 
by  the  contract  of  pledge.  The  breach  of 
duty  was  in  selling  at  an  unauthorized  time. 
The  debt  was  not  paid  or  tendered  at  maturi- 
ty; and  if  the  plaintiff  had  held  the  stock, 
and  sold  it  at  that  time,  the  sale  wouJd  have 
been  strictly  in  conformity  with  the  power. 
If  the  defendants  lost  anything  by  the  sale 
at  a  time  unauthorized,  they  would  be  rec- 
ompensed for  that  loss  by  an  award  of  dam- 
ages equivalent  to  the  market  value  of  the 
securities  at  the  time  the  debt  became  due. 
Tested  by  either  of  these  standards,  the  prop- 
er credit  was  allowed,  the  proof  being  that 
the  prices  of  the  securities  were  less  when 
the  note  matured  than  when  the  securities 
were  sold.  No  evidence  of  an  increased 
price  prior  to  December,  18SG,  was  produced. 
The  finding  of  the  judge  should  be  affinued 
on  tlie  ground,  also,  that  the  sale  was  con- 
sented to  and  i-atified  by  the  defendants. 
The  notices  served  on  the  morning  of  May 
15th  informed  the  defendants  that  the  secu- 
rities pledged  had,  in  the  plaintiff's  estima- 
tion, depreciated  in  market  value,  and  that 
the  contingency  provided  for  in  this  part  of 
the  contract  had  happened,  and  also  plainly 
indicated  the  purpose  on  the  part  of  the 
plaintiff  to  avail  itself  of  the  right  which, 
under  those  circumstances,  would  accrue  un- 
der the  contract.    Immediately  after  the  sale 


was  made,  the  defendants  had  notice  of  the 
fact  of  sale,  and,  veiy  shortly  after,  of  the 
amount  realized  therefrom.  No  objection 
was  made  to  the  sale  or  the  amount  realized. 
On  the  4th  of  June,  1884,  the  defendants 
filed  a  schedule  of  their  indebtedness  under 
their  assignment.  This  schedule  was  veri- 
fied by  the  oaths  of  the  defendants  that  it 
contained  a  ti-ue  account  of  their  creditors, 
and  of  the  sum  owing  to  each,  and  also  a 
statement  of  any  existing  collateral  or  other 
security  for  the  payment  of  such  debt.  In 
this  statement  the  plaintiff  was  put  down.as 
a  creditor  for  the  sum  of  $4,737.50,  which 
was  about  the  amount  due  the  plaintiff  after 
the  proceeds  were  applied  to  the  debt;  and 
to  this  specification  of  the  existing  debt  due 
the  plaintiff  was  appended  a  statement  that 
for  the  payment  of  this  debt  there  was  no  ex- 
isting collateral  or  other  security.  In  Sep- 
tember, 1885,  the  defendants  caused  to  be 
presented  to  the  plaintiif  a  composition 
agreement  with  a  view  to  a  compromise  with 
their  creditois,  in  which  the  debt  due  the 
plaintiff  was  stated  to  be  the  sum  of  $5,118.- 
87,  figures  which  represented  approximately 
the  net  amount  due  'the  plaintiff  on  the  note 
after  applying  thereon  the  proceeds  of  the 
sale  of  the  securities,  with  interest.  This 
agreement  was  signed  by  the  plaintiff,  but 
the  project  fell  through,  the  defendants  being 
unable  to  effect  a  c-ompromise  with  all  their 
creditors.  The  defendants  had  the  election 
either  to  ratify  the  sale,  and  claim  the  ben- 
efit of  it,  or  repudiate  it,  and  hold  the  plain- 
tiff in  damages.  The  act  of  the  defendants 
in  applying  the  proceeds  of  the  sale  as  a 
credit  on  the  plaintiff's  note  is  so  positive 
and  emphatic  an  act  of  lutifieation  and  adop- 
tion, that  it  cannot  be  retracted.  The  case 
was  properly  decided  at  the  trial,  and  the 
judgment  shotild  be  affirmed. 


IXJIKIES  TO  PERSONAL  PROPERTY. 


401 1 


ELLIS  V.  HILTON. 

(43  N.  W.  1048,  78  Mich.  150.) 

"Supreme   Court  of  Michigan.      Nov.   15,   1889. 

Error  to  circuit  court.  Grand  Traverse 
county;  Ramsdell,  Judge. 

Pratt  (fe  Davis,  for  appellant.  Loriii  Rob- 
erts (J.  11.  Adsit,  of  counsel),  for  appellee 

LONG,  J.  This  is  an  action  to  recover 
damages  against  tiie  det'enuaiit  for  negli- 
gently placing  a  stake  in  a  public  strtet  in 
Traverse  City,  whicli  plaintilT's  horse  ran 
against,  and  was  injured.  It  was  conceiied 
on  the  trial  by  counsel  for  defendant,  that 
the  horse  of  plaintiff  was  so  injured  tliat  it 
was  entirely  worthless.  Plaintiff  claimed 
damages,  not  only  for  tlie  full  value  of  the 
horse,  but  also  for  wliat  he  expinded  in  at- 
tem{)ting  to  effect  a  cure,  and  on  the  trial 
his  counsel  stated  to  the  court  that  plaintiff 
was  entitled  to  recover  a  reasonable  expense 
in  trying  to  cure  the  horse  before  it  was  de- 
cided that  she  was  actually  worthless.  The 
court  ruled,  however,  that  the  damages  could 
not  exceed  the  value  of  the  animal.  A  claim 
is  made  by  the  declaration  for  moneys  expend- 
ed in  trying  to  effect  a  cure  of  the  horse  after 
the  injury.  Upon  the  trial  the  plaintiff  testi- 
fied that  he  put  the  horse,  after  the  injury,  in- 
to the  hands  of  a  veterinary,  and  paid  him 
$'i5  for  cure  and  treatment.  On  his  ci'oss-ex- 
amination,  he  also  testified  that  the  veteri- 
nary said  "there  was  hopes  of  curing  her,  if 
the  muscles  were  not  too  badly  bruised.  Tie 
didn't  say  he  could  cure  her.  He  thought 
there  was  a  chance  that  he  might." 

Jr.  DeCow,  the  veterinary,  was  called,  and 
testified,  as  to  the  injury,  that  the  stake  en- 
tered the  breast  of  the  horse,  on  the  left 
side,  about  six  inches;  that  the  muscles  were 
l)ruised,  and  tiie  left  leg  perfectly  helpless. 
He  got  the  wound  healed,  but  on  account  of 
the  severe  bruise  of  the  muscles  the  leg  be- 
<;ame  paralyzed  and  useless.  On  being  asked 
whether  he  thought  she  could  be  helped  when 
he  first  saw  her,  he  stated  tliat  he  did  not 
know  but  she  might;  that  she  might  be 
'helped,  and  kept  for  breeding  purposes,  and 
be  of  some  value. 

It  is  evident  from  the  testimony  that  the 
plaintiff  acted  in  good  faith  in  attempting 
the  cure,  and  under  tiie  belief  tliat  tiie  mare 
•could  be  helped,  and  be  of  some  value.  The 
vcourt  below,  however,  seems  to  have  based 
its  ruling  that  no  greater  (damages  could  be 
recovered  than  the  value  of  the  animal,  and 
that  these  moneys  expended  in  attempting  a 
cure  could  not  be  recovered,  upon  the  ground 
that  the  defendant  was  not  consulted  in  rela- 
tion to  the  matter  of  the  attempted  cure. 
Wliatever  damages  the  plaintiff  sustained 
were  occasioned  by  the  negligent  conduct  of 
the  defendant,  and  recovery  in  such  cases  is 
always  permitted  for  such  amount  as  shall 
compensate  for  the  actual  los.s.  If  the  horse 
had  been  killed  outriglit  the  only  loss  would 


have  been  its  actual  value.  The  horse  was 
seriously  injured;  but  tlie  iilaiiitiff,  acting  in 
good  faith,  ami  in  the  belief  timt  she  miglit  be 
helped  and  made  of  some  value,  expended 
this  $35  in  care  and  medical  treatment.  He 
is  the  loser  of  tiie  actual  value  of  the  horse, 
and  what  he  in  good  faith  thus  expended. 
lie  is  permitted  to  recover  the  value,  but  cut 
off  from  what  he  has  paid  out.  This  is  not 
compensation. 

Counsel  for  defendant  contends  that  such 
damages  cannot  exceed  the  acLual  value  of 
the  property  lost,  because  the  loss  or  deslritc- 
tion  is  total.  There  may  be  cases  holding  to 
tliis  rule;  but  it  seems  to  me  the  rule  is  well 
stated,  and  based  upon  good  reason,  in  Wat- 
son V.  Bridge,  14  Me.  2U1,  in  which  the  court 
says:  "Plaintiff'  is  entitled  to  a  fair  indem- 
nity for  his  loss.  He  has  lost  the  value  of 
his  horse,  and  also  what  he  has  expi  nded  in 
endeavoring  to  cure  him.  The  jury  having 
allowed  this  part  of  his  claim,  it  must  be  un- 
derstood that  it  was  an  expense  prudently 
incurred,  in  the  reasonable  expectation  that 
it  would  prove  'beneficial.  It  was  incurred, 
not  to  aggravate,  but  to  lessen  the  amount 
for  which  the  defendants  might  be  held  lia- 
ble. Had  it  proved  successful,  tiiey  would 
have  had  the  benefit  of  it.  j'^s  it  turned  out 
otherwise,  it  is  but  just,  in  )ur  judgment, 
that  they  should  sustain  the  oss."  In  Mur- 
phy V.  McGraw,  41  N.  W.  .iep.  917,  it  ap- 
peared on  the  trial  that  the  Jior^e  was  worth- 
less at  the  time  of  purchase  by  reason  of  a 
disease  called  "eczema."  The  court  charged 
the  jury  that  if  the  plaintiff  was  led  by  de- 
fendant to  keep  on  trying  to  cure  the  horse 
the  expense  thereof  would  be  chargeable  to  the 
defendant,  as  would  also  be  the  case  if  there 
were  any  circumstances,  in  the  judgment  of 
the  jury,  which  rendered  it  reasonalile  tliat 
he  should  keep  on  trying  as  long  as  he  did  to 
effect  the  cure.  The  plaintiff'  recovered  for 
such  expense  and  on  the  hearing  here  the 
charge  of  the  trial  court  was  held  correct. 

It  is  a  question,  under  the  circumstances, 
for  the  jury  to  determine  whether  the  plain- 
tiff acted  in  good  faith,  and  upon  a  reasona- 
ble belief  that  the  horse  could  be  cured,  or 
made  of  some  value,  if  properly  taken  care 
of;  and  the  trial  court  was  in  error  in  with- 
drawing that  part  of  the  case  from  them. 
Such  damages,  of  course,  must  always  be 
confined  within  reasonable  bounds,  and  no 
one  would  be  justified,  under  any  circum- 
stances, in  expending  more  than  the  animal 
was  worth  in  attempting  a  cure.  This  is  the 
only  error  we  need  notice.  The  judgment 
of  the  court  below  must  be  reversed,  with 
costs,  and  a  new  trial  ordered, 

CHAMPLIN  and  MORSE,  JJ.,  concurred 
with  LONG,  J. 

SHERWOOD,  C.  J.  I  concur  in  the  re- 
sult. 

CAMPBELL,  .J.  I  think  the  rule  laid 
down  at  the  circuit  tlie  proper  one. 


410 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


SILSBURY  V.  McCOON  et  al.i 

(3  N.  Y.  379.) 

Court  of  Appeals  of  New  York.    July,  1850. 

This  was  an  action  of  trover  for  a  quantity 
of  whisky.  On  the  first  trial  Ix'fore  Willard, 
circuit  judge,  at  the  Montgomery  circuit,  in 
May,  1843,  the  plaintiffs  were  nonsuited. 
The  supreme  court  on  bill  of  exceptions  set 
aside  the  nonsuit,  and  ordered  a  new  trial. 
^ee  0  Hill,  42.j.  The  case  was  again  tried 
in  November,  1844,  before  the  same  .iudge. 
On  that  trial  it  was  proved  that  one  Hack- 
ney, a  deputy  of  the  sheriff  of  Montgomery 
county,  on  the  22d  of  March,  1842.  by  virtue 
of  a  fieri  facias  issued  on  a  judgment  in  the 
supreme  court  in  favor  of  McCoon  and  Sher- 
man, the  defendants,  against  Uriah  Wood, 
sold  the  whisky  in  question,  being  about 
twelve  hundred  gallons,  having  made  a  pre- 
vious levy  thereon;  and  that  iipon  the  sale 
the  defendants  became  the  purchasers,  and 
afterward  converted  it  to  their  own  use.  The 
whisky  was  levied  on  and  sold  at  the  distil- 
lery of  the  plaintiffs,  who  forbade  the  sale. 

The  plaintiffs  having  rested,  the  defendants 
offered  to  prove,  in  their  defense,  that  the 
Avhisky  was  manufactured  from  corn  belong- 
ing to  Wood,  the  defendant  in  the  execution; 
that  the  plaintiffs  had  taken  the  corn  and 
manufactured  it  into  whisky  without  any  au- 
thority from  Wood,  and  knowing  at  the  time 
they  took  the  corn  that  it  belonged  to  him. 
The  plaintiffs'  counsel  objected  to  this  evi- 
dence, insisting  that  Wood's  title  to  the  corn 
was  extinguished  by  its  conversion  into  whis- 
ky. The  circuit  judge  sustained  the  objection 
and  refused  to  receive  the  evidence.  The  de- 
fendants' counsel  excepted.  The  plaintiffs 
had  a  verdict  for  the  value  of  the  whisky, 
which  the  supreme  court  refused  to  set  aside. 
See  4  Denio,  332.  After  judgment  the  de- 
fendants brought  error  to  this  coirrt,  where 
the  cause  was  first  argued  by  Mr.  Hill,  for 
the  plaintiffs  in  error,  and  Mr.  Reynolds,  for 
the  defendants  in  error,  in ,  September,  1848. 
The  judges  being  divided  in  opinion,  a  rear- 
gument  was  ordered,  which  came  on  in  Janu- 
ary last. 

N.  Hill,  Jr.,  for  plaintiffs  in  error.  M.  T. 
Reynolds,  for  defendants  in  error. 

RUGGLES,  J.  It  is  an  elementary  princi- 
ple in  the  law  of  all  civilized  communities, 
that  no  man  can  be  deprived  of  his  property, 
except  by  his  own  voluntary  act,  or  by  opera- 
tion of  law.  The  thief  who  steals  a  chattel, 
or  the  trespasser  who  takes  it  by  force,  ac- 
quires no  title  by  such  Avrongful  taking.  The 
subsequent  possession  by  the  thief  or  the  tres- 
passer is  a  continuing  trespass;  and  if,  during 
its  continuance,  the  wrong-doer  enhances  the 
value  of  the  chattels  by  labor  and  skill  be- 
stowed upon  it,  as  by  sawing  logs  into  boards, 
splitting  timber  into  rails,  making  leather  in- 

1  Dissenting  opinion  of  Bronson,  C.  J.,  omitted. 


to  shoes,  or  iron  into  bars,  or  into  a  tool,  tht- 
manufactured  article  still  belongs  to  the  own- 
er of  the  original  material,  and  he  may  re- 
take it  or  recover  its  improved  value  in  an 
action  for  damages.  And  if  the  wrong-doer 
sell  the  chattel  to  an  honest  purchaser  having 
no  notice  of  the  fraud  by  which  it  was  ac- 
quired, the  purchaser  obtains  no  title  from 
the  trespasser,  because  the  trespasser  had 
none  to  give.  The  owner  of  the  original  ma- 
terial may  still  retake  it  in  its  improved  state, 
or  he  may  recover  its  improved  value.  The 
right  to  the  improved  value  in  damages  is  a 
consequence  of  the  continued  ownership.  It 
would  be  absurd  to  say  that  the  original  own- 
er may  retake  the  thing  by  an  action  of  re- 
plevin in  its  improved  state,  and  yet  that  he 
may  not,  if  put  to  his  action  of  trespass  or 
trover,  recover  its  improved  value  in  dam- 
ages. Thus  far,  it  is  conceded  that  the  com- 
mon law  agrees  Avith  the  civil. 

They  agree  in  another  respect,  to-wit,  that 
if  the  ciiattel  wrongfully  taken  afterward 
come  into  the  hands  of  an  innocent  holder 
who,  believing  himself  to  be  the  OAvner,  con- 
verts the  chattel  into  a  thing  of  different 
species,  so  that  its  identity  is  destroyed,  the 
original  owner  cannot  reclaim  it.  Such  a 
change  is  said  to  be  wrought  when  wheat  is 
made  into  bread,  olives  into  oil,  or  grapes 
into  wine.  In  a  case  of  this  kind  the  change 
in  the  species  of  the  chattel  is  not  an  inten- 
tional wrong  to  the  original  owner.  It  is. 
therefore,  regarded  as  a  destruction  or  con- 
sumption of  the  original  materials,  and  the 
true  owner  is  not  permitted  to  trace  their 
identity  into  the  manufactured  article,  for 
the  purpose  of  appropriating  to  his  own  use' 
the  labor  and  skill  of  the  innocent  occupant 
who  wrought  the  change;  but  he  is  put  to  his 
action  for  damages  as  for  a  thing  consumed. 
and  may  recover  its  value  as  it  was  when 
the  conversion  or  consumption  took  place. 

There  is  great  confusion  in  the  books  ui>ou 
the  question  what  constitutes  change  of  iden- 
tity. In  one  case  (Y.  B.  5  Hen.  VII.  p.  15),  it  is 
said  that  the  owner  may  reclaim  the  goods 
so  long  as  they  may  be  known,  or  in  otlier 
words,  ascertained  by  inspection.  But  this 
in  many  cases  is  by  no  means  the  best  evi- 
dence of  identity;  and  the  examples  put  by 
way  of  illustration  serve  rather  to  disprove 
than  to  establish  the  rule.  The  court  say 
that  if  grain  be  made  into  malt,  it  cannot  be 
reclaimed  by  the  owner,  because  it  can  not 
be  known.  But  if  cloth  be  made  into  a  coat. 
a  tree  into  squared  timber,  or  iron  into  a 
tool,  it  may.  Now  as  to  the  cases  of  the  coat 
and  the  timber  they  may  or  may  not  be  capa- 
ble of  identification  by  the  senses  merely;  and 
the  rule  is  entirely  uncertain  in  its  applica- 
tion; and  as  to  the  iron  tool,  it  certainly  can- 
not be  identified  as  made  of  the  original  ma- 
terial, without  other  evidence.  This  illustra- 
tion, therefore,  contradicts  the  rule.  In  an- 
other case  Qloore,  20).  trees  were  made  into 
timber,  and  it  Avas  adjudged  that  the  owner 
of  J:he   trees  nught  reclaim   the  timber,   "be- 


INJUKiKS  TO  PKUSONAL  I'ltOriOKTl'. 


411 


cause  the  greater  part  of  the  substance  re- 
mained." But  if  this  were  the  true  criterion 
it  would  embrace  the  cases  of  wheat  made  in- 
to bread,  milk  into  cheese,  grain  into  malt, 
and  others  which  are  put  in  the  books  as  ex- 
amples of  a  change  of  identity.  Other  writ- 
ers say  that  when  the  thing  is  so  changed 
that  it  cannot  be  reduced  from  its  new  form 
to  its  former  state,  its  identity  is  gone.  But 
this  would  include  many  cases  in  which  it  has 
been  said  by  the  courts  that  the  identity  is 
not  gone;  as  the  case  of  leather  made  into 
a  garment,  logs  into  timber  or  boards,  cloth 
into  a  coat,  etc.  There  is,  therefore,  no  defi- 
nite settled  rule  on  this  question;  and  al- 
though the  want  of  such  a  rule  may  create 
embarrassment  in  a  case  in  which  the  owner 
seeks  to  reclaim  his  property  from  the  hands 
of  an  honest  possessor,  it  presents  no  diffi- 
culty where  he  seeks  to  obtain  it  from  the 
wrong-doer;  provided  tlie  common  law  agrees 
with  the  civil  in  the  principle  applicable  to 
such  a  case. 

The  acknowledged  principle  of  the  civil  law 
is  that  a  willful  wrong-doer  jicquires  no  prop- 
erty in  the  goods  of  another,  either  by  the 
wrongful  taking  or  by  any  change  wrought 
in  them  by  his  labor  or  skill,  however  great 
that  change  may  be.  The  new  product  in  its 
improved  state  lielongs  to  the  owner  of  the 
original  materials,  provided  it  be  proved  to 
have  been  made  from  them;  the  trespasser 
loses  his  labor,  and  that  change  which  is  re- 
garded as  a  destruction  of  the  goods,  or  an 
alteration  of  their  identity  in  favor  of  an 
honest  possessor,  is  not  so  regarded  as  be- 
tween the  original  owner  and  a  willful  vio- 
lator of  his  right  of  property. 

These  principles  are  to  be  found  in  the  Di- 
gest of  Justinian.  Lib.  10,  tit.  4,  leg.  12,  § 
.S.  ''If  any  one  shall  make  wine  with  my 
grapes,  oil  with  my  olives,  or  garments  with 
my  wool,  knowing  they  are  not  his  own,  he 
shall  -be  compelled  by  action  to  produce  the 
said  wine,  oil  or  garments."  So  in  Viunius' 
Institutes  (title  1,  pi.  2.j):  "He  who  knows 
the  material  is  another's  ought  to  be  consid- 
ered in  tlu>  same  light  as  if  he  had  made  the 
species  in  the  name  of  the  owner,  to  whom 
also  he  is  to  be  understood  to  have  given  his 
labor." 

The  same  principle  is  stated  by  PufCendorf 
in  his  law  of  Nature  and  of  Nations  (b.  4,  ch. 
7.  §  10),  and  in  Wood's  Institutes  of  the  Civil 
Law  (page  92),  which  are  cited  at  large  in 
the  opinion  of  .Tewett,  J.,  delivered  in  this 
case  in  the  supreme  court  (4  Denio,  338),  and 
which  it  is  unnecessary  here  to  repeat.  In 
Brown's  Civil  and  Admiralty  Law  (page  240), 
the  writer  states  the  civil  law  to  be  that  the 
oi'iginal  owner  of  any  thing  improved  by  the 
act  of  another,  retained  his  ownership  in  the 
thing  so  improved,  unless  it  was  changed  into 
a  different  species;  as  if  his  grapes  were 
made  into  wine,  the  wine  belonged  to  the 
maker,  who  was  only  obliged  to  pay  the  own- 
er for  the  value  of  his  grapes.  The  species, 
however,  must  be  incapable  of  being  restored 


to  its  ancient  form;  and  the  materials  must 
have  been  taken  in  ignorance  of  their  being 
the  property  of  another. 

But  it  was  thought  in  the  court  below  that 
this  doctrine  had  never  been  adopted  into  the 
common  law,  either  in  E.ngland  or  here;  anil 
the  distinction  between  a  willful  and  an  in- 
voluntary wrong-doer  hereinbefore  mention- 
ed, was  rejected  not  only  on  that  ground  but 
also  because  the  rule  was  supposed  to  be  too 
harsh  and  rigorous  against  the  wrong-doer. 

It  is  true  that  no  case  has  been  found  in 
the  English  books  in  which  that  distinction 
has    been    expressly    recognized;    but    it    is 
equally  true  that  in  no  case  until  the  present 
has  it  been  repudiated  or  denied.     The  com- 
mon law  on  this  subject  was  evidently  bor- 
rowed from  the  Roman  at  an  early  day;    and 
at  a  period  when  the  common  law  furnished 
no  rule  whatever  in  a  case  of  this  kind.    Brac- 
ton,  in  his  treatise  compiled  in  the  reign  of 
Henry  III.,  adopted  a  portion  of  Justinian's 
Institutes  on  this  subject   without  noticing 
the  distinction;    and  Blackstone.  in  his  Com- 
mentaries (volume  2,  p.  404).  in  stating  what 
the  Roman  law  was.  follows  Bracton,  but  nei- 
ther of   these  writers   intimate   that  on   tlie 
point  in  question  there  is  any  difference  he- 
tween  the  civil  and  the  common  law.     The 
authorities  referred  to  by  Blackstone  in  sup- 
port of  his  text  are  three  only.     The  first  in 
Brooks'  Abridgement,  tit.  "Property,"  23,  is 
the  case  from  the  Year  Book,  5  H.  YII.  p.  !"> 
(translated  in  a  note  to  4  Denio,  835;),  in  wiiich 
the   owner   of  leather   brought   trespass    for 
taking  slippers  and  boots,  and  the  defendant 
pleaded  that  he  was  the  owner  of  the  leather 
and  bailed  it  to  J.    S.,   who  gave  it  to  the 
plaintiff,  who  manufactured  it  into  slippers 
and  boots,  and  the  defendant  took  them  as 
he  lawfully  might.     The  plea  was  held  good 
and  the  title  of  the  owner  of  the  leather  un- 
changed.    The  second  reference  is  to  a  case 
in  Sir  Francis  Moor's  Reports  (page  20).   in 
which   the   action    was   trespass    for   taking 
timber,   and   the  defendant  justified   on    the 
ground  that  A.  entered  on  his  land  and  cut 
down  trees  and  made  timber  thereof,  and  car- 
ried it  to  the  place  where  the  trespass  was 
alleged  to  have  been  committed,  and  after- 
ward gave  it  to  the  plaintiff,   and   that  the 
defendant,  therefore,  took  the  timber  as  he 
lawfully  might.     In  these  cases  the  chattels 
had  passed   from  the  hands  of  the  original 
trespasser  into  the  hands  of  a  third  person: 
in  both  it  was  held  that  the  title  of  the  orig- 
inal owner  was  unchanged,  and  that  he  had  a 
right  to  the  property  in  its  improved   state 
against  the  third  person  in  possession.    They 
are  in  conformity  with  the  rv;le  of  the  civil 
law;    and  certainly  fail  to  prove  any  differ- 
ence between  the  civil  and  the  common  law 
on  the  point  in  question.     The  third  case  cit- 
ed is  from  Popham's  Reports  (page  38),  and 
was  a  ease  of  confusion  of  goods.     The  plain- 
tiff voluntarily  mixed  his  own  hay  with  the 
hay  of  the  defendant,  who  carried  the  whole 
away,   for  which  he  was  sued   in  trespass: 


41: 


DAMAGES  FOR  INJURIES  TO  PROPERTY. 


:iucl  it  was  adjudiied  that  the  whole  should 
go  to  the  dofondaut;  and  Blackstoue  refers  to 
this  case  iu  support  of  his  text,  that  "our 
law  to  guard  against  fraud  gives  the  entire 
propertj-,  without  any  account,  to  him  whose 
original  dominion  is  invaded  and  endeavored 
to  be  rendered  uncertain  without  his  own 
consent."  The  ciAil  law  in  such  a  case  Avould 
have  required  him  avIio  retained  the  whole  of 
the  mingled  goods  to  account  to  the  other  for 
his  share  (Just.  Inst.  Jib.  2,  tit.  1,  §  28);  and 
the  common  law  in  this  particular  appears  to 
be  more  rigorous  than  the  civil;  and  there  is 
no  good  reason  why  it  should  be  less  so  in  a 
case  like  that  now  in  hand,  where  the  neces- 
sity of  guarding  against  fraud  is  even  greater 
than  in  the  case  of  a  mingling  of  goods,  be- 
cause the  cases  are  likely  to  be  of  more  fre- 
quent occurrence.  Even  this  liability  to  ac- 
count to  him  whose  conduct  is  fraudulent 
seems  by  the  civil  law  to  be  limited  to  cases 
in  which  the  goods  are  of  such  a  nature  that 
they  may  be  divided  into  shares  or  portions, 
according  to  the  original  right  of  the  parties; 
for  by  that  law  if  A.  obtain  by  fraud  the 
parchment  of  B.  and  write  upon  it  a  poem,  or 
wrongfully  take  his  tablet  and  paint  there- 
on a  picture,  B.  is  entitled  to  the  written 
parchment  and  to  the  painted  tablet,  without 
accounting  for  the  value  of  the  writing  or 
of  the  picture.  Just.  Inst.  lib.  2,  tit.  1,  §§  23, 
24.  Neither  Bracton  nor  Blackstoue  have  point- 
ed out  any  difference  except  in  the  case  of 
confusion  of  goods  between  the  common  law 
and  the  Roman,  from  which  on  this  subject 
our  law  has  mainly  derived  its  principles. 

So  long  as  property  wrongfully  taken  re- 
tains its  original  form  and  substance,  or  may 
be  reduced  to  its  original  materials,  it  be- 
longs, according  to  the  admitted  principle 
of  the  common  law,  to  the  original  owners 
without  reference  to  the  degree  of  improve- 
ment, or  the  additional  value  given  to  it  by 
the  labor  of  the  wrong-doer.  Nay  more,  this 
rule  holds  good  against  an  innocent  purchaser 
from  the  wrong-doer,  although  its  value  be 
increased  an  hundred  fold  by  the  labor  of  the 
purchaser.  This  is  a  necessary  consequence 
of  the  continuance  of  the  original  ownership. 

There  is  no  satisfactory  reason  why  the 
wrongful  conversion  of  the  original  materials 
into  an  article  of  a  different  name  or  a  dift"er- 
ent  species  should  work  a  transfer  of  the 
title  from  the  true  owner  to  the  trespasser, 
provided  the  real  identity  of  the  thing  can 
be  traced  by  evidence.  The  difflculty  of  prov- 
ing the  identity  is  not  a  good  reason.  It  re- 
lates merely  to  the  convenience  of  the  rem- 
edy, and  not  at  all  to  the  right.  There  is 
no  more  ditficulty  or  uncertainty  in  proving 
that  the  whisky  in  question  was  made  of 
Wood's  corn,  than  there  would  have  been  in 
proving  that  the  plaintiff  had  made  a  cup 
of  his  gold,  or  a  tool  of  his  iron;  and  yet  in 
those  instances,  according  to  the  English 
cases,  the  proof  would  have  been  unobjec- 
tionable. In  all  cases  where  the  new  pro- 
duct cannot  be  identified  by  mere  inspection. 


the  original  material  must  be  traced  by  the 
testimony  of  witnesses  from  hand  to  hand 
through  the  process  of  transformation. 

Again:  The  court  below  seem  to  have  re- 
jected the  rule  of  the  civil  law  applicable  to 
this  case,  and  to  have  adopted  a  principle 
not  heretofore  known  to  the  common  law; 
and  for  the  reason  that  the  rule  of  the  civil 
law  was  too  rigorous  upon  the  wrong-doer 
in  depriving  him  of  the  benefit  of  his  labor 
bestowed  upon  the  goods  wrongfully  taken. 
But  we  think  the  civil  law  in  this  respect  is 
in  conformity  not  only  with  plain  principles 
of  morality,  but  supported  by  cogent  reasons 
of  pul)lic  policy;  while  the  rule  adopted  by 
the  court  below  leads  to  the  absurdity  of 
treating  the  willful  trespasser  with  greater 
kindness  and  mercy  than  it  shows  to  the  in- 
nocent possessor  of  another  man's  goods.  A 
single  example  may  suffice  to  prove  this  to  be 
so.  A  trespasser  takes  a  quantity  of  iron  ore 
belonging  to  another  and  converts  it  into  iron, 
thus  changing  the  species  and  identity  of  the 
article;  the  owner  of  the  ore  may  recover  its 
value  in  trover  or  trespass;  but  not  the  value 
of  the  iron,  because  under  the  rule  of  the 
court  below  it  would  be  unjust  and  rigorous 
to  deprive  the  trespasser  of  the  value  of  his 
labor  in  the  transmutation.  But  if  the  same 
trespasser  steals  the  iron  and  sells  it  to  an 
innocent  purchaser,  who  works  it  into  cut- 
lery, the  owner  of  the  iron  may  recover  of 
the  purchaser  the  value  of  the  cutlery,  be- 
cause by  this  process  the  original  material  is 
not  destroyed,  but  remains,  and  may  be  re- 
duced to  its  former  state;  and  according  to 
the  rule  adopted  by  the  court  below  as  to 
the  change  of  identity  the  original  ownership 
remains.  Thus,  the  innocent  purchaser  is 
deprived  of  the  value  of  his  labor,  while  the 
guilty  trespasser  is  not. 

The  rule  adopted  by  the  court  below  seems, 
therefore,  to  be  objectionable,  because  it  op- 
erates unequally  and  unjustly.  It  not  only 
divests  the  true  owner  of  his  title,  without 
his  consent,  but  it  obliterates  the  distinction 
maintained  by  the  civil  law,  and  as  we  think 
by  the  common  law,  between  the  guilty  and 
the  innocent;  and  abolishes  a  salutary  check 
against  violence  and  fraud  upon  the  rights  of 
property. 

We  think,  moreover,  that  the  law  on  this 
subject  has  been  settled  by  judicial  decisions 
in  this  country.  In  Betts  v.  Lee,  5  Johns. 
349.  it  was  decided  that  as  against  a  trespass- 
er the  original  owner  of  the  property  may 
seize  it  in  its  new  shape,  whatever  alteration 
of  form  it  may  have  undergone,  if  he  can 
prove  the  identity  of  the  original  materials. 
That  was  a  case  in  which  the  defendant  had 
cut  down  the  plaintiff's  trees  and  made  them 
into  shingles.  The  property  could  neither  be 
identified  by  inspection  nor  restored  to  its 
original  form;  but  tlie  plaintiff  recovered  the 
value  of  the  shingles.  So,  in  Curtis  v.  Groat. 
6  Johns.  169,  a  trespasser  cut  wood  on  an- 
other's land  and  converted  it  into  charcoal. 
It  was  held  that  the  charcoal  still  belonged 


IMJUltlES  TO  i'EliSOXAL  rKOPEKTY. 


-iia 


10  the  owner  of  the  wood.  Here  was  a 
cliaiige  of  the  Avood  into  an  article  of  different 
kind  and  species.  No  part  of  the  snl)stance 
of  the  wood  remained  in  its  original  state; 
its  identity  could  not  be  ascertained  by  the 
senses,  nor  could  it  be  restored  to  what  it 
originally  Avas.  That  case  distinctly  recog- 
nizes the  principle  that  a  willful  trespasser 
cannot  acquire  a  title  to  property  merely  by 
changing  it  from  one  species  to  another.  And 
the  late  Chancellor  Kent,  in  his  Commenta- 
ries (volume  2,  p.  3(io),  declares  that  the  liig- 
lish  law  will  not  alloAV  one  man  to  gain  a  ti- 
tle to  the  property  of  anomer  upon  the  prin- 
ciple of  accession,  if  he  took  the  other's  prop- 
erty willfully  as  a  trespasser;  and  that  it 
was  settled  as  early  as  the  time  of  the  Year 
Books,  that  whatever  altera tiou  of  form  any 
l)roperty  had  undergone,  the  t)wner  might 
seize  it  in  its  ue\x  shape  if  he  could  prove  tlie 
identity  of  the  original  materials. 

The  same  rule  has  been  adopted  in  Penn- 
sylvania. Snyder  v.  Vaux,  2  Rawle,  427. 
And  in  Maine  and  Massachusetts  it  has  been 
applied  to  a  willful  intermixture  of  goods. 
Ryder  v.  Hathaway.  21  Pick.  304,  305;  Win- 
gate  V.  Smith,  7  Shep.  287;    Willard  v.  Rice, 

11  Mete.  (Mass.)  493. 


We  are,  therefore,  of  opinion  that  if  the 
plaintiffs  below,  in  converting  the  corn  into 
whisky,  knew  that  it  belonged  to  Wood,  and 
that  they  were  thus  using  it  in  violation  of 
his  right,  they  acquired  no  title  to  the  manu- 
factured article,  which,  although  changed 
from  the  original  material  into  another  of  dif- 
ferent nature,  yet,  being  the  actual  product 
of  the  corn,  still  belonged  to  Wood.  The 
evidence  offered  by  the  defendants  and  re- 
jected by  the  circuit  judge  otight  to  have 
been  admitted. 

The  right  of  Wood's  creditt)rs  to  seize  the 
whisky  by  their  execution  is  a  necessary  con- 
sequence of  Wood's  ownership.  Their  right 
is  paramount  to  his,  and  of  course  to  his  elec- 
tion to  sue  in  trover  or  trespass  for  the  corn. 

The  judgment  of  the  supreme  cotirt  should 
be  reversed  and  a  new  trial  ordered.  Judg- 
ment reversed. 

GARDINER,  .TEWICTT,  HIKLBIT,  and 
PRATT,  JJ.,  concurred. 

BRONSON,  C.  J.,  and  HARRIS.  J.,  dissent. 

TAYLOR,  J.,  did  not  hear  the  argument, 
and  gave  no  opinion. 


414 


DAMAGES  FOK  INJUUIKS  TU  I'KOPERTY. 


OLEMEXT  V.  DUFFY. 

(7  N.  W.  85.  54  Iowa,  632.) 

Supreme  Court  of  Iowa.     Oct.  21,  1S80. 

Appeal  from  circuit  court,  Wright  county. 

This  is  an  action  of  replevin  for  225  bushels 
of  wheat.  The  writ  was  issued  on  the  twen- 
ty-sixth day  of  September,  1879,  and  the 
w'heat  being  in  stack,  the  sheriff  delivered  it 
to  the  plaintiff,  who  proceeded  to  thresh  and 
market  it.  Each  party  claimed  to  be  the  ab- 
solute owner  of  the  grain.  The  trial  was  had 
on  the  nineteenth  day  of  November,  1879. 
A  jury  was  empanelled,  and  the  plaintiff  in- 
troduced his  evidence,  whereupon  the  court, 
on  motion  of  the  defendant,  Avithdrew  from 
the  jury  the  question  of  ownership  and  right 
of  possession,  and  rendered  judgment  there- 
for in  favor  of  the  defendant.  By  the  agree- 
ment of  the  parties,  the  question  of  the  as- 
.sessment  of  damages  and  the  value  of  the 
property  was  also  withdra^n-n  from  the  jury 
and  submitted  to  the  court. 

It  was  admitted  that  the  wheat  in  contro- 
versy consisted  of  225  bushels,  and  that  on 
the  day  the  same  was  taken  from  the  defend- 
ant, under  the  writ  of  replevin,  wheat  w^as 
worth,  in  the  nearest  market,  65  cents  per 
l)ushel;  that  after  the  taking  and  before  the 
day  of  trial  the  wheat  advanced  in  value, 
and  the  highest  value  in  the  nearest  market 
during  said  interval  was  one  dollar  a  bushel; 
that  plaintiff  sold  the  same  in  market  at  90 
cents  a  bushel;  that  the  threshing  and  haul- 
ing to  market  were  worth  20  cents  a  bushel. 
The  defendant  offered  to  prove  that  wheat 
of  the  quality  of  that  in  controversy  was, 
at  the  time  of  the  trial,  worth  one  dollar  per 
bushel  in  the  nearest  market.  This  evidence 
Avas  objected  to,  and  the  objection  was  sus- 
tained, and  defendant  excepted.  No  further 
evidence  having  been  introduced,  the  court 
held  that  the  defendant  was  entitled  to  re- 
cover the  value  of  the  wheat  at  the  nearest 
market  on  the  day  the  same  was  taken  under 
the  writ  of  replevin,  less  the  expense  of 
threshing  and  marketing,  without  regard  to 
the  subsequent  advance  in  value,  and  with- 
out regard  to  the  price  actually  obtained  by 
plaintiff,  and  rendered  judgment  accordingly. 
Defendant  appeals. 

S.  M.  Weaver,  for  appellant. 

KOTIIROCK,  ,L  1.  The  only  question  to 
be  deterniined  is  the  measure  of  damages 
Avliicli  the  defendant  is  entitled  to  recover. 
It  is  claimed  that  he  should  receive  the  high- 
est market  price  up  to  the  time  of  the  trial. 
The  action  of  replevin,  or  for  the  recovery 
of  specific  personal  property,  as  it  is  de- 
nominated in  the  Code,  is  a  contest  for  prop- 
erty and  not  for  damages.  Where  an  issue 
is  made  in  the  action,  each  party  claims  that 
he  is  entitled  to  the  possession  of  the  prop- 
erty. Tlie  ])roperty  is  the  primary  subject  of 
the  controversy.  Ordinarily  the  plaintiff  ex- 
ecutes the  bond  provided  for  in  section  3229, 
and  the  property  is  delivered  to  him.     The 


obligation  of  his  bond  is  "that  he  will  appear 
at  the  next  term  of  the  court  and  prosecuti^ 
his  suit  to  judgment,  and  return  the  prop- 
erty if  a  return  be  aAvarded,  and  also  pay 
all  costs  and  damages  that  may  be  adjudged 
against  him." 

By  section  3238  the  jury  are  required  to  as- 
sess the  value  of  the  property,  as  also  the 
damages  for  taking  or  detention  thereof.  We 
think,  where  the  plaintiff  seizes  the  property 
upon  his  writ,  and  the  defendant  succeeds  in 
the  action  and  is  found  to  be  the  absolute 
owner  of  the  property,  and  is  therefore  en- 
titled to  its  return,  that  the  value  should  b(» 
assessed  as  of  the  time  of  the  trial.  Such  is 
the  obligation  of  the  bond.  The  plaintiff' 
thereby  undertakes  to  deliver  the  property  to 
the  defendant  in  case  a  return  be  aAvarded. 
If  he  has  in  the  meantime,  by  a  sale  of  the 
property  or  otherwise,  put  it  out  of  his  poAver 
to  make  the  delivery  required  by  the  bond, 
he  must  render  its  equivalent  as  of  the  time 
when  the  deliA^ery  should  have  been  made. 
The  case  is  not  diff'ei-ent  in  principle  from  an 
ordinary  sale  of  property  to  be  delivered  in 
the  future.  In  this  case  the  grain  increased 
in  A'alue  pending  the  action.  It  is  property 
of  that  character  which  fluctuates  in  value. 
If  it  had  decreased  in  value  the  measure  of 
the  defendant's  recovery  would  still  be  the 
value  at  the  time  of  the  trial,  with  damages 
for  the  decrease  in  value,  because  the  defend- 
ant, by  his  bond,  undertakes  not  only  to  re- 
turn the  property,  but  also  to  pay  damages; 
and  the  jury  are,  by  section  3238.  required  to 
assess  the  damages  for  the  taking  or  deten- 
tion. 

A  large  number  of  authorities  have  been 
cited  by  counsel  for  appellant  upon  the  ques- 
tion Avhether,  in  an  action  of  trover,  the  plain- 
tiff is  entitled  to  recover  the  value  of  the 
property  at  the  time  of  the  conversion,  or  the 
highest  value  up  to  the  time  of  the  trial. 
We  have  examined  many  cases  upon  the  sub- 
ject. A  full  reA'icAv  of  the  authorities  upon 
the  question  will  be  found  in  a  note  to  the 
sixth  edition  of  SedgAvick  on  the  Measure  of 
Damages  (page  590).  Upon  the  one  hand 
it  is  held  that  in  actions  for  the  wrongfvd  con- 
version of  stocks  and  of  personal  property 
of  tluctuating  value  the  measure  of  the  dam- 
ages is  the  highest  market  price  which  the 
property  may  have  had  from  the  date  of  the 
conversion  to  the  end  of  the  trial,  provided 
the  action  be  brought  and  pressed  Avith  prop- 
er diligence.  Other  authorities  hold  that  the 
A'alue  must  be  limited  to  the  date  of  the  ac- 
tual conversion  of  the  property.  It  has  been 
held  by  this  court  that  the  measure  of  dam- 
ages for  the  breach  of  an  executory  contra  el 
for  the  purchase  of  goods  Avhich  are  paid  for 
in  adA'ance  is  the  highest  'market  price  up  to 
the  time  of  the  trial.  Cannon  v.  Folsom.  2 
Iowa,  101;  Davenport  v.  Wells,  3  loAva,  242. 

But  we  need  not  pursue  this  inquiry,  nor 
determine  this  question.  We  think  it  is  clear 
that,  by  the  very  terms  of  the  bond,  the  plain- 
tiff' in  this  case  was  bound  to  account  for  the 


INJURIES  TO  PERSONAL  PROPERTY. 


415 


.tgrain  and  for  damages  for  its  detention,  as 
<of  the  time  at  which  he  was  bound  to  deliver 
it. 

2.  It  is  urged  by  counsel  for  appfHimt  that 
the  coiu't  erred  in  deducting  from  the  value 
of  the  grain  the  cost  of  threshing  and  market- 
ing; and  it  is  said  that  where  a  wrong-doer 
(>xpends  labor  upon  the  property  of  another, 
he  is  not  entitled  to  compensation  therefor. 
But  in  this  case  it  does  not  app;\ar  that  the 
plaintiff  knew,  when  he  commenced  the  ac- 
tion and  seized  the  grain,  that  it  was  the  de- 
fendant's property.  He  may  have  acted  in 
entire  good  faith,  believing  that  he  was  the 
owner.  We  believe  the  rule  should  be  limit- 
ed to  wilful  wrong-doers.  Such  seems  to 
have  been  the  opinion  of  the  court  in  Sils- 
bury   V.    McCoon,   3  N.    Y.    379.      The   cases 


where  the  question  has  arisen  are  mostly 
those  where  it  has  been  claimed  that  the  right 
of  property  may  be  lost  by  reason  of  the 
change  of  identity.  See  2  Kent.  Comm.  3153. 
What  is  said  in  Stuart  v.  Phelps,  39  Iowa, 
18,  upon  the  subject,  should,  we  think,  be 
considered  as  applicable  to  a  wilful  trespass. 
In  our  opinion  the  expense  of  threshing  and 
marketing  the  grain  was  pi-operly  deducted 
from  the  market  price.  Grain  is  ordinarily 
held  for  sale  on  the  market.  In  the  stack 
it  is  of  no  value  as  an  article  of  commerce; 
and  the  plaintiff  did  no  more  than  what  the 
defendant  would  have  be-^n  requii'ed  to  do  to 
realize  the  money  upon  it. 

For  the  error  in  assessing  the  value  as  of 
the  time  when  the  grain  was  seized  under 
the  writ,  the  judgment  must  be  reversed. 


41G 


DAMAGES  FOK  IXJUKIES  TO  PKOl'ERTY. 


JACKSONVILLE,    T.   &   K.  W.   RY.    CO.   v. 
PENINSULAR    LAND.    TRANSPORTA- 
TION &  MANUFACTURING  CO.i 

(9  South.  G61,  27  Fla.  1.) 

Sn|)rome  Court  of  Florida.     April  25,  1891. 

Appeal  from  circuit  court,  Orange  county; 
.Tolin  D.  Broome,  Judge. 

J.  R.  Parrott,  Robt.  W.  Davis,  Hammond 
iV-  Jackson,  and  T.  M.  Day.  Jr.,  for  appel- 
lant. Alex.  St.  C]air-A1)rams  and  Be.i;gs  & 
ralmer.  for  appellee. 

RA.\1':y,  C.  J.  This  is  an  appeal  from  a 
judgment  recovered  against  appellant  by  the 
appellee  in  April,  1890,  for  the  sum  of  $52,- 
909.0:?  and  costs,  in  an  action  of  trespass. 

The  amended  declaration  states  that  the 
defendant,  who  is  a  corporation  under  the 
laws  of  Florida,  on  April  9,  1888,  owned, 
controlled,  managed,  and  operated  a  railroad 
from  the  town  of  Sauford,  in  Orange  county, 
to  Tavares,  in  Lake  county,  in  this  state, 
known  as  the  "Sanford  &  Lake  Eustis  Divi- 
sion of  the  .Jacksonville,  Tampa  &  Key 
West  Railway  Company;"  and  that  at  the 
same  time,  and  at  the  time  of  the  construc- 
tion of  the  said  Sauford  &  Lake  Eustis  road, 
the  plaintiff,  a  body  corporate  under  the 
laws  of  this  state,  was  the  owner  of  certain 
buildings  in  Tavares,  to  wit:  The  Peninsu- 
lar Hotel,  of  the  value  of  $10,000;  a  store 
building  on  Tavares  boulevard,  at  the  corner 
of  New  Hampshire  avenue,  of  the  value  of 
.$G,000;  and  another  store  building,  on  the 
same  boulevard,  and  near  the  same  avenue, 
of  the  value  of  $2,000;  one  livery  stable, 
valued  at  $1,500;  one  cottage,  on  East  Ruby 
street,  valued  at  $000;  another  at  the  corner 
of  the  same  street  and  Joanna  avenue,  valued 
at  $500;  two  other  cottages  on  the  .■^ame  ave- 
nue, valued,  respectively,  at  $500  and  .$400; 
and  one  on  Texas  avenue,  valued  at  $100; 
and  that  the  plaintiff  was  at  the  time  stated 
the  owrer  of  the  following  personal  property, 
viz.:  The  furniture  and  entire  outfit  of  the 
hotel,  of  the  value  of  $16,000;  the  counters, 
shelves,  cases,  etc.,  in  the  first-named  store, 
of  the  value  of  $1,000;  chairs,  tables,  maps, 
desks,  life-preservers,  and  harness  of  the 
value  of  $1,000;  one  outfit  of  printing  ma- 
terial, of  the  value  of  $1,200,— the  buildings, 
tenements,  and  personal  property  aggi-egat- 
ing  in  value  the  sum  of  .$72,100.  That  the 
railroad  was  constructed  along  Tavares  bou- 
levard, witliin  1.50  feet  of  plaintiff's  stores 
and  hotel,  and  within  1,000  feet  of  all  the 
other  above-described  property;  and  that  de- 
fendant, although  well  aware  of  the  inflam- 
mable nature  of  the  material  of  which  the 
buildings,  tenements,  and  personal  property 
were  composed,  and  of  their  lialulity  to  take 
fire,  negligently  and  carelessly  permitted  its 
locomotive  engines,   operated  and  controlled 

1  Portion  of  opinion  omitted. 


by  its  agents,  servants,  and  employes  to 
be  run  along  the  said  boulevard  without  tak- 
ing necessary  and  proper  precaution  to  pre- 
vent sparks  of  fire  escaping  from  the  smoke- 
stack of  the  locomotive  engines,  thereby  en- 
dangering the  property  of  the  plaintiff  to  de- 
struction by  fire;  and  that,  on  the  morning 
of  the  day  aforesaid,  the  defendant's  train  of 
cars,  drawn  by  one  of  its  locomotive  engines, 
and  controlled,  managed,  and  operated  by 
one  of  its  employes,  agents,  and  servants, 
started  from  the  said  boulevard  for  Sanford. 
the  .said  locomotive  not  having  a  spark-ar- 
rester therein,  (if  there  was  any  spark-arrest- 
er at  all,)  so  arranged  as  to  prevent  the  es- 
cape of  sparks  from  the  smoke-stack;  and 
the  defendant  having  negligently,  recklessly, 
and  carelessly  omitted  and  failed  to  exercise 
due  care  and  precaution  to  prevent  the  escape 
of  sparks  of  tire  from  the  smoke-stack  of 
said  locomotive  engine,  and  not  exercising 
due  care  and  diligence  in  managing,  control- 
ling, and  operating  the  locomotive,  it,  the  said 
locomotive,  there  being  at  the  time  of  leaving- 
said  boulevard,  and  before,  a  high  wind 
blowing,  threw  out  from  its  smoke-stack  a 
considerable  number  of  sparks  and  blazing 
fragments  of  wood,  which  then  and  there 
set  fire  to  a  certain  wooden  sidewalk  on  said 
boulevard,  and  the  fire  was  communicated 
to  the  adjacent  Imildings,  including  the  plain- 
tiff's said  buildings,  tenements,  and  personal 
property,  and  plaintiffs  properties  aforesaid 
were,  all  and  each  of  them,  totally  destroyed 
by  said  fire;  the  plaintiff  being  without  fault, 
and  unable  to  arrest  or  prevent  the  spread 
of  the  fire,  which  fire  was  caused  by  the 
gross  negligence  of  defendant  in  not  exercis- 
ing due  care  and  precaution  in  pn'venting 
the  escape  of  the  sparks  from  the  locomotive  : 
the  plaintiff  claiming  $75,000  damages. 

l)i  ^  !\l  ^  *  *  * 

VII.  As  to  the  measure  of  damages,  the  fol- 
lowing instructions,  numbered  here  as  in  the 
record,  were  given  to  the  jury: 

•'(21)  That  the  measure  of  damage  in  cases 
of  this  kind  is  the  value  of  the  property  at 
the  time  it  was  destroyed,  with  interest  at  the 
rate  of  8  ])er  cent,  per  annum;  that  the  jury 
have  the  right  to  arrive  at  this  value  from 
the  testimony  of  the  witnesses,  of  the  weiglit 
and  credibility  of  wliich  they  are  the  sole 
judges."     (117th  error  assigned.) 

"(8)  L<^eueral  charge  by  the  court:]  If  the 
jury  believe  from  the  evidence  that  the  fire 
which  destroyed  plaintiff's  proiierty  Avas  caus- 
ed, as  laid  down  in  the  declaration,  by  the 
negligence  of  the  defendant  as  a  proximate 
cause,  and  that  no  negligence  of  the  plaintiff 
concurred  as  contributing  to  the  result,  the 
plaintiff  is  entitled  to  recover  from  the  de- 
fendant the  value  of  the  property  destroyed 
at  the  time  and  place  of  its  destruction,  which 
value  you  must  arrive  at  from  tlie  evidence, 
with  eight  per  cent,  per  anuimi  interest  added 
fi-om  the  9th  of  April,  1888.  to  this  time." 
(i;?8th  error  assigned.! 

Upon  the  same  question  the   following  in- 


IN.UKIES  TO  I'KKSONAL  PKOPEKTY. 


417 


stnieiloiis  were  asked  tor  l).v  the  defense,  :iud 
refused  to  be  given  by  the  court,  nunil)ered 
here  also,  as  in  the  record,  to-wit: 

"(28)  The  court  instructs  the  jury  that, 
should  they  find  from  the  evidence  that  the 
defendant  is  liable  for  the  burning  of  plain- 
tiff's property,  iu  estimating  the  damages  for 
the  property  destroyed  they  must  be  govern- 
ed by  the  market  value  of  the  property  at  the 
time  and  place  it  was  destroyed."  (Its  re- 
fusal is  assigned  as  the  12Stli  error.) 

"(29)  That  it  devolves  upon  the  plaintiff  to 
prove  by  a  preponderance  of  evidence,  the 
market  value  of  the  property  destroyed."  (Its 
refusal  is  assigned  as  the  12yth  error.) 

"(30)  That,  should  the  jury  find  from  the 
evidence  that  defendant  is  liable  for  the 
burning  of  plaintiffs  property,  iu  estimating 
the  damai,.s  resulting  therefrom  they  are  con- 
fined to  the  market  value  of  the  property  de- 
stroyed at  the  time  and  place  of  its  destruc- 
tion, and  they  are  not  to  be  governed  alone 
by  the  cost  of  the  property  to  the  plaintiff; 
but  they  may  take  into  consideration  the  age 
of  the  property  destroyed,  its  deterioration 
from  use,  its  situation,  the  quality  of  its  ma- 
terials, and  all  other  facts  given  in  evidence 
which  l)ear  on  the  market  value  of  the  proper- 
ty at  the  time  and  place  it  was  destroyed." 
(Its  refusal  is  assigned  as  the  loOth  error.) 

The  laAv  as  to  what  is  the  "measure  of  dam- 
age" in  the  al)stract,  in  cases  where  the  prop- 
erty of  one  has  been  destroyed,  unintentional- 
ly, but  by  the  neghgence  or  carelessness  of 
another,  where  there  is  no  element  of  will- 
fulness or  maliciousness  in  the  destruction,  is 
well  settled  to  be  "just  compensation  in  mon- 
ey for  the  property  destroyed;"  such  an 
amount  as  Avill  fully  restore  the  loser  to  the 
same  property  status  that  he  occupied  before 
the  destruction.  To  arrive  at  the  amount  of 
such  compensation,  inquiry,  in  the  absence 
of  malice,  is  necessarily  confined  strictly  to 
the  ascertainment  of  the  value  of  the  proper- 
ties destroyed,  with  such  incidents  of  inter- 
est for  the  retention  of  such  value  from  the 
person  entitled  thereto  as  may  be  sanctioned 
by  law.  The  contention  of  the  appellant  in 
urging  as  error  the  giving  of  the  above- 
quoted  instructions  by  the  court  on  this  sub- 
ject, and  the  refusal  to  give  the  above  in- 
structions by  it  asked  for,  is  that  the  plain- 
tiff, in  establishing  the  value  of  his  destroyed 
properties  shoiild  have  been  confined  to  proof 
of  its  market  value  at  the  time  and  place  of 
its  destruction;  and  that  the  admission  of  evi- 
dence as  to  the  original  cost  of  the  properties, 
and  as  to  the  depreciatioii  thereof  from  its 
original  cost  by  usage  or  otherwise,  Avas  er- 
roneous; and  that  it  was  error  to  instruct 
the  jury  that  the  plaintiff  was  entitled,  as 
matter  of  law,  to  interest,  at  the  rate  fixed 
by  law,  upon  Avhatsoever  a  mount  of  damages 
they  might  find  the  plaintiff  to  be  entitled  to, 

WhereA^er  there  is  a  well-lcnoAvn  or  fixed 
market  price  for  any  ])r.)p('rty,  the  value  of 
which  is  in  controversy,  it  is  proper,  in  es- 
tablishing the  A'alue,  to  prove  such  market 
LAW  DAM.2d  Ed.— 27 


value;  but.  in  order  to  say  of  a  thing  tliat  it 
has  a  market  value,  it  is  necessary  that  there 
shall  be  a  market  for  such  commodity;  tliai 
is,  a  demand  therefor,— an  ability,  from  sucli 
demand,  to  sell  the  same  Avlien  a  sale  therenl' 
is  desired.  Where,  therefore,  there  is  no  de- 
mand for  a  thing,— no  ability  to  sell  the  same, 
—then  it  cannot  be  said  to  have  a  market 
value  "at  a  time  Avhen,  and  at  a  place  where," 
there  is  no  market  for  the  same.  We  think 
it  AA'ould  have  been  a  very  harsh  rule  in  a 
case  like  this  to  have  confined  the  plaintiff  to 
proof  of  the  market  value  of  the  property  at 
the  time  and  place  of  its  destruction,  in  th(> 
absence  of  proof  that  at  the  time  and  place 
of  such  destruction  there  was  a  market  for 
such  property.  In  cases  Avhere  property  is  of 
a  Avell-knoAvn  kind  iu  general  use,  having  a 
recognized  standard  value,  it  is  not  proper  to 
circumscribe  the  proof  of  such  value  within 
the  limits  of  the  market  demand  at  the  time 
when,  and  at  the  place  where,  it  was  destroyed. 
Were  the  rule  contended  for  to  prevail,  then 
the  compensation  for  personal  properties,  con- 
fessedly Avorth  thousands  of  dollars,  Avould 
be  reduced  to  a  pittance  in  cents  if  destroyed 
en  route  from  market  to  market,  in  a  thinly- 
settled,  barren  coiuitry  where  there  was  no 
demand,  simply  because  of  the  accident  of 
"time  and  place"  of  its  destruction.  In  ac- 
tions of  this  kind,  AA'here  the  value  of  the 
properties  destroyed  is  the  criterion  of  the 
amount  of  damage  to  be  awarded,  and  the 
property  destroyed  has  no  market  value  at 
the  place  of  its  destruction,  then  all  such  per- 
tinent facts  and  circumstances  are  admissi- 
ble in  evidence  that  tend  to  establish  its  real 
and  ordinary  value  at  the  time  of  its  desti-nc- 
tion;  such  facts  as  will  furnish  the  jury,  Avho 
alone  determine  the  amount,  with  such  perti- 
nent data  as  will  enable  them  reasonably  and 
intelligently  to  arrive  at  a  fair  A^aluation;  and 
to  this  end  the  original  market  cost  of  the 
property;  the  manner  in  Avhich  it  has  been 
used;  its  general  condition  and  quality;  the 
percentage  of  its  depreciation  since  its  pur- 
chase or  erection,  from  use,  damage,  age,  do- 
cay,  or  otherAvise,— are  all  elements  of  proof 
proper  to  be  submitted  to  the  jury  to  aid  them 
iu  ascertaining  its  value.  And  to  establisli 
A'alue  in  such  cases  the  opinions  of  witnesses 
acquainted  Avith  the  standard  A-alue  of  such 
properties  are  properly  admissible.  Sullivan 
V.  Lear,  23  Fla.  463,  2  South.  846:  Railroad 
Co.  V.  Winslow,  66  111.  219;  1  Thomp.  Trials. 
§  380;  Railroad  Co.  v.  Irvin,  27  111.  178;  Whii;' 
A'.  Hermann,  51  111.  243;  Railroad  Co.  v.  Bun- 
nell, 81  Pa.  St.  414;  Vandiue  v.  Burpee,  13 
Mete.  288.  Judge  Cooley,  in  Insurance  Co. 
y.  Horton,  28  Mich.  175,  in  speaking  of  evi- 
dence based  on  a  knowledge  of  the  purchas,' 
price  of  property,  says:  "The  objection  thni 
the  daughter  of  the  plaintiff"  AA'as  alloAved  to 
testify  to  the  value  of  articles  burned,  without 
having  been  shoAvn  to  possess  the  prop  n- 
knowledge  to  qualify  her  to  speak  as  an  ex- 
])ert,  Avas  not  well  taken.  She  testified  tli:!t 
she  bought  a  good  many  of  the  articles,  and 


418 


DAMAGES  FOR  IXJUKIES  TO  PROPERTY, 


was  pnseut  wheu  others  were  bouglit.  Ou 
this  evidence  slie  had  some  knowledge  of 
values  which  it  was  proper  she  should  com- 
municate to  the  jury.  The  extent  of  that 
knowledge,  and  its  sufficiency  as  a  basis  for 
a  verdict,  were  to  be  tested  by  her  examina- 
tion, and  by  the  good  sense  and  judgment  of 
the  jurors."  Coburn  v.  Goodall,  72  Gal.  498, 
14  Pac.  190;  Com.  v.  Sturtivant,  117  Mass. 
122;  Derby  v.  Gallup,  5  Minn.  119,  (Gil.  85;) 
The  Slavers,  2  AVall.  375;  Johnston  v.  War- 
den, 3  Watts,  104;  Whipple  v.  Walpole,  10  N. 
H.  130;  Joy  v.  Hopkins,  5  Denio,  84.  In  Nor- 
man V.  Wells,  17  Wend.  1.3G,  the  court  says: 
"The  ordinary,  and  In  general  the  only,  legal 
course  is  to  lay  such  facts  before  the  jury  as 
have  a  bearing  on  the  question  of  damages, 
and  leave  them  to  fix  the  amount.  They 
are  the  only  proper  judges.  They  are  impar- 
tial, and  capable  of  entering  into  these  ordi- 
nary matters."  In  Clark  v.  Baird,  9  N.  Y.  183, 
Johnson,  J.,  delivering  the  opinion,  says: 
"Upon  this  ground,  as  well  as  upon  that  of 
superior  convenience  and  the  constant  recep- 
tion of  such  testimony  upon  trials  without  ob- 
jection,—a  tacit,  but  strong,  proof  of  its  pro- 
priety,—it  must  be  deemed  established  that, 
upon  a  question  of  value,  the  opinion  of  a  wit- 
ness who  has  seen  the  thing  in  question,  and 
is  acquainted  with  the  value  of  similar  things, 
is  not  incompetent  to  be  submitted  to  a  jury." 
Hamer  v.  Hathaway,  33  Cal.  117;  Rogers  v. 
Insurance  Co.,  1  Story,  603;  Blydeuburgh  v. 
Welsh,  1  Baldw.  331;  Whitbeek  v.  Railroad 
Co.,  30  Barb.  644;  Luse  v.  Jones,  39  N.  J. 
Law,  707;  Brown  v.  Werner,  40  Md.  15;  Al- 
lison V.  Chandler,  11  Mich.  542;  Railroad  Co. 
V.  Marley,  25  Neb.  138,  40  N.  W.  948;  Browne 
V.  Moore,  32  Mich.  254.  We  think  the  evi- 
dence as  to  values  admitted  in  this  case  were 
fully  confined  within  the  limits  of  the  princi- 
ples announced,  and  that  there  was  no  error 
in  the  admission  of  such  testimony,  nor  in  the 
giving  of  the  instructions  above  quoted  upon 
the  question  of  the  measure  of  damages,  nor 
in  the  refusal  to  give  the  above-quoted  in- 
structions asked  for  by  the  appellant. 
******* 

The  amount  which  it  would  have  cost  to 
erect  buildings  of  the  same  kind  on  the  day 
of  the  fire,  less  a  proper  deduction  for  dete- 
rioration, is  not  the  proper  measure  of  dam- 
ages in  a  case  of  this  kind.  In  Burke  v. 
Railroad  Co.,  7  Heisk.  451,  where  the  plain- 
tiff's dwelling  and  contents  had  been  de- 
stroyed by  fire  communicated  by  sparks  from 
the  railroad  Company's  locomotive,  the  jury 
were  instructed  that  the  measure  of  dam- 
ages would  be  just  what  it  would  cost  in 
cash  at  the  time  and  place  of  the  burning  to 
replace  the  house  and  each  article  consumed 
in  it.  This  was  held  to  be  inaccurate,  and 
calculated  to  produce  confusion  in  the  esti- 
mate of  damages,  and  the  better  instruction 
to  be  that  the  measure  of  damages  would 
be  the  value  of  the  property  destroyed  at  the 
time  and  place  of  the  destruction.  In  Rail- 
road Co.   V    Winslow,  06  111.  219,   a  case  of 


condemnation  of  private  property  for  i-ail- 
road  purposes,  the  company  having  taken 
the  land  and  destroyed  the  buildings  upon 
it,  it  is  said:  "For  all  the  property  of  appel- 
lees taken  by  the  corporation  for  their  uses. 
or  damaged  by  it,  just  compensation  must 
be  made  to  the  owners.  If  a  building 
stands  in  the  way  of  the  road  which  it  is 
necessary  to  destroy,  its  value  must  be  paid 
by  the  coiiDoration,  and  the  jury,  in  estimat- 
ing its  value,  will  take  into  consideration, 
not  the  value  of  the  materials  composing 
the  building,  but  the  value  of  the  building 
as  such." 

The  value  of  the  property  at  the  time  and 
place  of  the  fire  is  the  question  the  jury  is 
to  pass  upon.  This  the  court  charged,  and 
the  plaintiff  admitted.  Market  value  is  what 
a  thing  will  sell  ror.  Railroad  Co.  v.  Bun- 
nell, 81  Pa.  St.  414.  To  make  a  market, 
however,  there  must  be  buying  and  selling. 
Blydenburgh  v.  Welsh,  1  Baldw.  340.  Prop- 
erty may  have  a  value  for  which  the  owner 
may  recover  if  it  be  destroyed,  although  it 
have  no  market  value.  Railroad  Co.  v.  Stan- 
ford, 12  Kan.  3.54.  380.  "Suppose,"  asks  the 
court  in  the  case  just  cited,  "a  rod  of  railway 
track,  or  a  shade  tree,  or  a  fresco  painting 
on  the  walls  or  ceiling  of  a  house,  or  a  bushel 
of  corn  on  the  western  plains,  should  be  de- 
stroj^ed,  could  there  be  no  recovery  for  these 
articles  simply  because  there  might  be  no 
actual  market  value  for  the  same?"  To 
fix  the  market  value  of  a  thing,  it  seems  to 
us  that  there  must  be  a  selhng  of  things  of 
the  same  kind.  If  there  had  ever  been  a 
sale  of  an  hotel,  or  of  any  other  building. 
in  Tavares,  we  are  not  informed;  and  we 
have  no  judicial  knowledge,  nor  does  the 
record  inform  us,  that  hotels  have  a  market 
value  there.  Yet,  though  there  is  no  market 
value  or  standard  value,  the  plaintiff  should 
not  be  allowed  more  than  the  property  de- 
stroyed by  fire  on  the  9th  of  April,  1SS8, 
was  reasonably  worth  in  Tavares.  To  do 
this  it  is  proper  to  invoke  the  aid  of  all  facts 
calculated  to  show  its  value,  and  we  are  un- 
able to  perceive  that  the  circuit  judge  erred 
in  admitting  the  evidence  of  the  cost  of  re- 
placing the  building  on  the  day  of  the  fire. 
It  was  a  fact  tending  to  show,  and  to  be 
considered  with  others,  by  the  jury  in  de- 
termining what  amount  of  money  would  put 
the  plaintiff  in  the  position  in  which  he  was 
at  the  time.  If  there  were  any  other  facts 
incident  to  the  condition  of  Tavares,  consid- 
ered in  a  business  or  other  point  of  view, 
calculated  to  aft'ect  the  value  of  this  or  any 
other  property  there,  and  which  would  qual- 
ify or  outw^eigh  the  item  of  this  cost  of 
restitution,  and  such  facts  do  not  appear  in 
the  record,  we  are  not  responsible.  It  must 
be  assumed  there  were  none  other  existing. 
By  saying  the  testimony  was  admissible  we 
do  not  say  what  weight  should  be  given  it, 
nor  do  we  come  into  conflict  with  the  Ten- 
nessee and  Illinois  cases  last  mentioned.  The 
evident  moaning  of  tlii)S!>  cases  is  that  the 


INJUIUES  TO  PEUSONAL  PROPERTY. 


419 


cost  of  restitution  or  of  the  materials  is  not 
the  mtasure  of  damages  governing  the  jury, 
and  not  that  such  facts  can  never  be  con- 
sidered in  arriving  at  the  true  value  or  meas- 
ure of  damages.  If  an  article  has  no  mar- 
ket value,  Its  value  may  be  shown  by  proof 
of  such  elements  or  facts  affecting  the  ques- 
tion as  exist.  Recourse  may  be  had  to  the 
items  of  cost,  and  its  utility  and  use.  2 
Suth.  Dam.  378.  In  Luse  v.  Jones,  39  N.  J. 
Law,  707,  the  plaintiff  was  permitted  to 
show  the  cost  of  a  bedstead  as  tending  to 
prove  its  value.  This  cost  was  the  price  at 
which  a  regular  dealer  in  such  articles  had 
sold  it  when  new  in  the  ordinary  course  of 
trade.  "A  sale  so  made,"  said  the  court, 
"was  evidence  of  the  market  value  of  the 
thing  when  new,  and  the  value  of  such  goods 
when  worn  can  scarcely  be  ascertained  ex- 
cept by  reference  to  the  former  price,  and 
the  extent  of  the  depreciation.  Of  course, 
the  cost  alone  would  not  be  a  just  criterion 
of  the  present  value,  but  it  would  constitute 
one  element  in  such  a  criterion,  and  the  at- 
tention of  the  jury  in  this  case  was  clearly 
directed  to  the  importance  which  it  deserved 
to  have."  See,  also,  Sullivan  v.  Lear,  23 
Fla.  463,  474,  2  South.  840.  In  Whipple  v. 
Walpole,  10  N.  H.  130,  it  was  held  it  was 
admissible  to  prove  what  horses  like  those 
lost  or  injured  cost  at  a  town  near  the  place 
where  the  loss  occurred.  Upon  the  same 
principle,  and  for  even  stronger  reasons,  we 
think  that  the  cost  of  restitution  at  the  time 
of  the  destruction  of  the  building  was  an 
element  which  might  be  considered  by  the 
jury  with  others  in  ascertaining  value. 

The  suggestion  of  appellant's  brief  that 
what  a  building  is  used  for,  whether  it  was 
a  home  or  a  business  house,  what  income 
was  derivable  from  it,  where  it  was  located, 
what  its  surroundings,  enter  into  the  consid- 
eration of  value,  is,  as  to  the  hotel,  met  by 
the  evidence  in  this  case,  and,  except  as  to 
that  of  income,  the  same  may  be  said  of  the 
other  buildings.  Whether  or  not  any  of  the 
buildings  were  profitable  as  investments  at 
the  time  of  the  fire  the  defendant  could,  if 
such  evidence  was  admissible,  have  elicited 
on  cross-examination  of  plaintiff's  witnesses, 
or  by  independent  testimony,  as  might  have 
been  proper  under  the  circumstances;  and 
the  same  may  be  said  also  of  the  suggestion 
as  to  the  "prospects"  of  these  properties,  and 
of  the  value  of  other  property  in  the  vicinity, 
and  of  the  land  after  the  houses  were  burn- 
ed. "What  were  the  whole  premises  worth 
in  the  market  as  they  stood  at  the  time  of 
the  fire,"  is,  if  we  substitute  the  words  "at 
Tavares"  for  "in  the  market,"  the  question 
really  submitted  to  the  jury  for  decision. 

The  question  of  value  in  cases  where,  as 
here,  there  is  no  market  value,  is  one  pe- 
culiarly for  the  jury.  Nothing  has  been  per- 
mitted to  go  to  this  jury  which  it  was  im- 
proper for  them  to  consider  in  coming  to  a 
conclusion  as  to  the  value  of  the  several 
kinds   of   property   involved.      It   cannot  be 


assumed  that  there  were  other  persons  who 
would  have  testified  to  facts  or  circumstan- 
ces other  than  those  shown  by  the  record, 
of  a  character  to  infiuence  the  jurors  to  a 
lower  estimate  of  the  values,  or  have  them- 
selves placed  a  less  value  on  the  property. 
The  jury  has  returned  a  verdict  according 
to  its  judgment,  and  it  is  undeniable  that 
they  have  not  given  the  plaintiff  the  benefit 
of  the  several  values  insisted  upon  by  the 
plaintiff's  chief  witness,  but  it  is  apparent 
that,  after  considering  all  the  facts  and  cir- 
cumstances and  testimony,  the  jury  has  said 
what  they  deemed  the  property  to  be  worth, 
falling  considerably  below  the  aggregate  of 
that  witness'  opinion.  There  was,  in  our 
judgment,  sufficient  evidence  to  sustain  the 
verdict,  and  we  fail  to  find  in  the  brief  any 
contention  that  the  verdict  should  be  re- 
versed as  being  excessive.  If  there  were 
such  contention,  we  could  not  sustain  it. 

VIII.  Upon  the  question  of  the  allowance 
of  interest  as  matter  of  right  upon  the 
amount  of  damages  found  by  the  jury,  from 
the  date  of  the  destruction  of  the  property 
in  cases  like  this,  where  the  damages  sued 
for  are  unliquidated,  the  following  authori- 
ties, with  others  that  we  have  examined, 
hold,  in  effect,  "that  the  jury  may,  at  their 
discretion,  allow  and  include  interest  in  their 
verdict  as  damages,  but  not  as  interest  eo 
nomine:"  2  Sedg.  Meas.  Dam.  p.  190;  au- 
thorities cited  in  note  to  Shelleck  v.  French, 
6  Am.  Dec.  190;  Black  v.  Transportation  Co., 
45  Barb.  40;  Railroad  Co.  v.  Sears,  00  Ga. 
499;  Lincoln  v.  Claflin,  7  Wall.  132;  Garrett 
V.  Railway  Co.,  30  Iowa,  121;  Brady  v.  Wil- 
coxson,  44  Cal.  239.  In  all  these  authorities 
no  other  reason  is  given  for  this  rule  than 
that  it  has  been  so  held  in  other  cases  that 
have  gone  before  them,  except  that  in  a  few 
cases  it  is  put  upon  the  ground  that  where 
property  is  wrongfully  taken  and  withheld, 
the  defendant  gets  the  benefit  of  its  use  dur- 
ing the  detention,  and  is  required  to  pay  in- 
terest as  compensation  for  such  use,  when 
in  cases  of  property  wrongfully  destroyed 
the  defendant  derives  no  benefit  therefrom. 
The  answer  to  this  theory  is  that,  in  cases 
of  this  kind  for  the  negligent  and  wrongful 
destruction  of  property,  the  issue  as  to  the 
amount  of  the  compensation  does  not  depend 
upon  benefits  that  accrued  therefrom  to 
the  defendant,  whose  negligent  act  brought 
about  the  destruction;  but  the  issue  rests 
wholly  upon  the  question  as  to  what  is  the 
sum  of  the  damage  to  the  party  whose  prop- 
erty has  been  destroyed.  Neither  do  we 
think  this  theory  can  properly  be  applied 
even  in  cases  of  trespass  and  trover.  Inter- 
est on  the  value  of  the  property  taken  in 
those  cases  cannot  correctly  be  said  to  be 
allowed  to  the  plaintitf  "because  the  de- 
fendant derives  benefit  from  the  use  of  the 
property,"  but  is  allowed  to  the  plaintiff  to 
compensate  him  for  his  deprivation  of  its 
use  during  the  detention  tliereof.  Suppose 
in  this  case  the  furniture  in  this  hotel,   in- 


420 


DAMAGES  FOIt  IXJUItlES  TO  PROPERTY. 


stead  of  beiug  destroyed,  had  beeu  wrongiul- 
ly  taken  hy  the  defendant  and  bad  been  car- 
ried away  and  disposed  of  at  once  by  gift 
to  other  parties,  or  had  been  destroyed  by 
lire  or  otherwise  after  the  taking,  so  tliat  it 
really  derived  no  benefit  therefrom,  in  an 
action  for  the  recovery  of  its  value  interest 
inider  the  modern  authorities  would  be  re- 
coverable as  matter  of  legal  right;  but  in 
such  case,  Avould  the  snl)sequent  gift  or  de- 
struction thereof,  and  absence  of  beneficial 
use  to  the  defendant,  have  any  effect  upon 
the  right  to  the  recovery  of  interest?  The 
answer  in  the  negative  is  self-evident. 

In  Aucrum  v.  Slone,  2  Speer,  594,  in  which 
this  question  of  interest  is  discussed  at  great- 
er length  than  in  any  case  we  have  exam- 
ined holding  this  view,  Frost,  J.,  says:  "To 
the  argument,  if  interest  may  be  allowed  in 
the  aggregate  damages  found  by  a  verdict, 
why  may  it  not  be  allowed  eo  nomine?— the 
reply  is:  The  law  does  not  inquire  into  the 
particulars  of  a  verdict  for  damages,  and 
in  some  cases  interest  furnishes  a  just  and 
convenient  measure  for  the  jury.  But  it  is 
a  stated  compensation  for  the  use  of  money, 
and,  as  it  cannot  be  separated,  even  in-  idea, 
from  debt,  seems  not  properly  incident  to  un- 
certain and  contingent  damages.  The  dis- 
tinction is  admitted  to  be  one  of  form,  de- 
l)ending  on  the  form  and  cause  of  action.  It 
is  necessary  and  obligatory  by  law,  to  main- 
tain the  forms  of  action,  with  the  distinctive 
rules  which  govern  them.  If  this  argument 
is  not  allowed  to  be  decisive,  there  is  no  rea- 
son why  assumpsit  should  not  be  brought  on 
a  sealed  instrument,  or  one  form  of  action 
serve  alike  for  all  contracts  as  well  as  torts. 
Besides,  in  actions  sounding  in  damages,  the 
liability,  amount,  and  time,  necessary  inci- 
dents for  the  allowance  of  interest,  are  not 
ascertained  and  determined  until  the  verdict 
is  rendered.  Interest  being  stated  damages 
on  pecuniary  liabilities,  to  find  a  sum  with 
interest  in  an  action  sounding  in  damages  is 
to  allow  damages  on  damages,  which  is  an 
incongruity."  The  pith  of  the  argument  here 
is  that  the  distinction  grows  out  of  and  de- 
pends upon  the  "form"  of  action,  and  that  it 
is  necessary  to  maintain  the  "forms  of  ac- 
tion," with  the  distinctive  rules  which  gov- 
ern them.  We  cannot  give  our  consent  that 
matters  of  substance  founded  upon  right  shall 
be  thus  made  subservient  to  the  maintenance 
of  the  mere  forms  of  action;  or  that  money 
which  rightfully  belongs  to  a  party  shall  be 
yiven  when  called  by  the  name  "damages," 
;ind  withheld  if  chanced  to  be  called  "inter- 
est." In  Parrott  v.  Ice  Co.,  46  N.  Y.  361,  the 
(;()urt  says:  "In  cases  of  trover,  replevin, 
and  trespass,  interest  on  the  value  of  prop- 
«n-ty  unlawfully  taken  or  converted  is  allowed 
by  way  of  damages,  for  the  purpose  of  com- 
l)lete  indemnity  of  the  party  injured,  and  it 
is  difficult  to  see  why,  on  the  same  principle, 
interest  on  the  value  of  property  lost  or  de- 
stroyed by  the  wrongful  or  negligent  act  of 
another  m;iy  not  be  included  in  thi'  damages." 


In  the  case  of  Ancrum  v.  Slone,  supra,  the 
court  says:  "It  is  necessary  to  the  allow- 
ance and  estimate  of  interest  to  ascertain  the 
sum  due,  and  the  time  when  payable."  At 
what  time  does  the  liability  for  the  negligent 
destruction  of  property  attach  to  the  wrong- 
doer if  it  shall  be  found  that  all  things  concur 
to  set  such  liability  in  motion?  It  has  been 
sometimes  contended  that  such  liability  at- 
taches only  upon  the  finding  of  the  jury.  We 
do  not  think  so.  The  verdict  of  the  jury  sim- 
ply declares  the  liability  and  fixes  the 
amount.  The  law  attaches  the  liability  at 
the  time  of  the  destruction,  if  all  the  circum- 
stances attendant  thereon  concur  in  stamping 
the  case  with  the  legal  elements  of  liabihty. 
As  before  seen,  the  measure  of  the  loser's 
damage  is  the  value  of  his  property  destroyed 
at  the  time  of  its  destruction.  Why  at  the 
time  of  destruction?  Because  it  is  at  that 
time  that  the  destroyer  becomes  liable  for 
such  value.  The  loser,  before  and  at  the  time 
of  such  destruction,  was  entitled  to  his  prop- 
erty, and  the  beneficial  use  of  it;  and  in- 
stantly, upon  such  destruction,  becomes,  un- 
der the  law.  entitled  to  its  value  in  money  at 
the  hands  of  the  wrong-doer,  and  can  sue  in- 
stantly for  such  value.  Because,  through  thv"- 
law's  delays,  no  opportunity  is  afforded  to 
have  the  amount  of  that  value  declared  by  a 
jury  for  a  year,  perhaps  several  years,  is  it 
right  that  the  loser  shall,  during  all  that  time, 
be  kept  out  of  both  his  property,  its  use,  and 
its  value,  without  some  remuneration  for  the 
retention  by  the  w^rong-doer  of  such  value? 
Upon  every  principle  of  right  we  cannot  think 
so.  The  theory  of  the  measure  of  liability 
in  such  cases  is  just  compensation.  We  can- 
not see  either  justice  or  completeness  of  the 
compensation  dispensed  under  a  rule  that  de- 
clares a  party  who  wrongfully  destroys  an- 
other's property  to  be  liable  at  the  time  of 
such  destruction  for  the  value  thereof,  but 
that  permits  the  wrong-doer  to  withhold  such 
value  for  years,  without  some  compensation 
for  such  retention.  We  cannot  appreciate  the 
force  of  the  argument  of  the  learned  judge 
in  Ancrum  v.  Slone,  supra,  "that  to  allow  in- 
terest in  an  action  for  damages  woidd  be  to 
allow  damages  on  damages."  It  is  true  that 
in  a  certain  sense  it  is  an  allowance  of  dam- 
ages on  damages,  (interest  being  a  species 
of  damage,)  but  it  is  not  an  allowance  of 
damage  on  damage,  for  the  same  cause  of 
damage.  In  the  one  case  the  principal  sum 
— the  value  of  the  property  destroyed— is 
awarded  as  the  damage  for  the  wrongful  de- 
struction; in  the  other,  interest  is  allowed  as 
the  damage  for  the  wrongful  detention  of 
such  value.  In  Chapman  v.  Railway  Co.,  20 
Wis;  304,  Chief  Justice  Dixon  says:  "In  tres- 
pass, trover,  or  replevin  for  the  same  prop- 
erty taken  or  converted  by  the  defendants, 
such  would  have  been  the  legal  rule  of  dam- 
ages; or,  rather,  the  value,  with  interest 
from  the  time  of  the  taking  or  conversion. 
Why  should  not  the  same  rule  prevail  in  tliis 
action?     We  are  at  a  hiss  to  assign  any  gnod 


INJURIES  TO  rKliSONAL  PROPERTY. 


421 


vcison  for  tho  distiiu-tiou,  if  it  cau  bt'  said 
tliat  it  exists,  or  if  it  cau  be  said  to  be  in  tlie 
<liseretion  of  tlie  jury  to  fjive  iuterest  by  way 
of  damages  iu  this  case,  wliilst  iu  tlie  otliers 
tliey  must  give  it  as  a  matter  of  strict  legal 
right.  We  say  we  can  see  no  good  reason 
for  the  discrimination.  The  object  of  the 
rule,  or  of  any  rule  of  damages  in  any  of  the 
<'ases,  is  to  give  just  and  full  compensation 
for  losses  actually  sustained.  It  is  obvious, 
regard  being  had  to  such  compensation, 
which  constitutes  the  foundation  of  the  rule, 
tliat  the  giving  of  interest  is  as  essential  in 
this  case  as  in  any  of  the  others.  It  is  im- 
material to  the  party  wdio  has  lost  his  prop- 
erty, whether  it  has  been  taken  and  convert- 
ed, or  negligently  destroyed  by  the  other. 
His  loss  is  the  same  in  either  case,  and  in 
either  case  he  should  be  entitled  to  the  same 
compensation."  This  view  of  the  law  ac- 
cords fully  with  ours,  and  seems  to  be  sus- 
tained also  by  the  following  authorities:  1 
Suth.  Dam.  174;  Railroad  Co.  v.  Marley,  25 
Neb.  138,  40  N.  W.  948;  Mote  v.  Railroad  Co., 
27  Iowa.  22;  Sayre  v.  Hewes,  32  N.  J.  Eq. 
052;  Derby  v.  Gallup,  5  Minn.  119  (Gil.  85). 
In  the  case  of  Milton  v.  Blackshear,  8  Fla. 
IGl  (decided  iu  1858).  relied  upon  to  establish 
a  contrary  view,  the  question  under  discus- 
sion was  not  involved.  The  action  in  that 
■<-ase  was  upon  an  account  for  lumber  sold  and 
delivered:  and  there  is  nothing  in  the  deci- 
sion that  conflicts  with  the  views  here  ex- 
pressed. Neither  do  we  find  anything  in  our 
.statute  that  is  inconsistent  therewith.  Our 
statute  (page  585,  §  1,  McOlel.  Dig.;  chapter 
1483,  Laws  18(56)  provides  as  follows:     "The 


legal  rate  of  interest  to  be  charged  on  all 
notes,  money,  or  liability  of  whatsoever  char- 
acter, and  upon  all  judgments,  shall  be  eight 
per  centum  per  annum."  In  view  of  the 
charges  given,  we  must  assume  that  they 
were  heeded  by  the  jury,  and  that  they  in- 
cluded interest  in  their  verdict  from  the  date 
of  the  fire  to  the  day  of  their  finding  upon 
the  amount  found  by  them  to  be  the  value  of 
the  property  destroyed,  which  value,  by  arith- 
metical rules,  we  find  to  be,  in  round  num- 
bers, forty-five  thousand  and  some  hundred 
dollars.  The  remainder  of  the  verdict  of 
.$52,909.03  represents  interest  found  by  the 
jury  for  the  period  of  2  years  and  17  days 
intervening  between  the  fire  and  the  verdict. 
The  established  measure  of  damage  in  such 
cases  being  complete  compensation,  we  feel 
that  it  would  be  doing  a  positive  Avrong  to 
the  plaintiff  were  we,  because  of  these  in- 
structions on  the  question,  to  order  either  a 
new  trial,  or  a  remittitur  of  this  sum,  to 
which,  upon  every  principle  of  right,  the 
plaintiff  is  justly  entitled.  The  errors  as- 
signed for  giving  the  above-quoted  21st  and 
8th  instructions  on  the  subject  of  interest 
and  measure  of  damage,  and  for  the  refusal 
to  give  the  above-quoted  28th.  29th,  and  30th, 
instructions  asked  for,  cannot  be  sustained. 

The  member  of  the  court  whose  name  ap- 
pears at  the  head  of  this  opinion  feels  it  is 
due  to  his  associate,  Mr.  Justice  TAYLOR,  to 
say  that  he  prepared  about  the  same  number 
of  the  subdivisions  of  this  opinion  as  were 
prepared  by  such  member. 

The  judgment  is  affirmed. 


422 


DAMAGES  FOK   PEKSONAL   INJURIES. 


LINSLEY  V.   BUSHNELL.I 

(15  Conn.  225.) 

Supreme  Court  of  Errors  of  Conuecticut.     July, 
1842. 

A.  left  his  cart,  tilled  with  wood,  by  the 
side  of  the  fence  within  the  highway,  before 
his  homestead,  in  the  eveuiug;  and  the  next 
morning,  the  cart  was  found  in  the  travelled 
path,  about  five  rods  distant  from  the  place 
Avhere  it  was  left,  upset,  lying  on  one  side, 
and  the  wood  by  it,  constituting  together  a 
dangerous  obstruction  in  the  road.  By  whom, 
or  by  what  agency,  this  was  done,  did  not  ap- 
pear; but  A.,  knowing  the  situation  of  his 
property,  and  having  a  reasonable  opportuni- 
ty to  remove  it,  suffered  it  to  remain  there 
two  or  three  days,  when  B.,  travelling  along 
the  highway  in  the  night,  in  a  one-horse 
wagon,  drove  accidentally  upon  the  cart  and 
wood,  without  previously  discovering  them, 
by  reason  of  which  he  was  violently  thrown 
from  his  wagon,  and  severely  and  dangerous- 
ly injured. 

Baldwin  &  Kimberly,  for  the  motion.  R.  I. 
IngersoU  and  C.  A.  Ingersoll,  opposed. 

CHURCH,  J.  1.  Questions  of  minor  impor- 
tance have  been  discussed  upon  this  motion, 
which  it  may  be  well  to  dispose  of,  before 
considering  the  leading  principle  of  the  case. 

First,  it  has  been  objected,  that  the  testi- 
mony of  Collins  was  improperly  admitted. 
Collins  testified,  that,  immediately  after  the 
plaintiff  received  the  injury,  the  defendant 
said,  "I  did  not  mean  to  remove  the  cart  and 
wood,  until  somebody  got  injured,  and  then 
make  known  who  put  them  into  the  trav- 
elled road."  And  afterwards,  he  said,  "What 
would  you  do?  I  am  provoked  every  day.  T 
won't  touch  the  wood,  if  half  Branford  runs 
into  it,  and  gets  killed,  &c."  This  testimony 
was  admissible,  for  several  reasons.  It  con- 
duced to  prove,  that  the  defendant  knew  the 
situation  of  the  cart  and  wood;  that  he  rec- 
ognized them  as  his  own,  and  had  not  aban- 
doned them,  or  resigned  his  claim  to  any  tres- 
passer; that  he  had  a  reasonable  time  to  re- 
move them,  but  purposely  permitted  them  to 
remain;  and  also,  it  furnished  strong  evi- 
dence of  the  recklessness  of  the  defendant; 
and  if  it  did  not  prove  any  special  malice 
towards  this  plaintiff,  it  might  legitimately 
affect  the  question  of  damages  in  the  case, 
■^lall  V.  Steamboat  Co.,  13  Conn.  319;    Sears 

-.  Lyons,  2  Starkie,  317;  Treat  v.  Barber,  7 
Conn.  274;  Churchill  v.  Watson,  5  Day,  140; 
Bracegirdle  v.  Or  ford,  2  Maule  &  S.  77;  Mer- 
est V.  Harvey,  5  Taunt.  442. 

Secondly,  it  was  objected  that  the  facts 
claimed  by  the  plaintiff  do  not  sustain  either 
count  in  his  declaration.  In  the  first  count, 
it  is  alleged,  that  the  defendant  "wrongfully 
and  unjustly  put  and  placed,  and  caused  to 
be  put  and  placed,  divers,  to  wit,  ten  logs  of 


I  Dissontiiif;  (iidnion  of  Waite,  J.,  omitted. 


wood,  and  a  large  ox  cart,  in  the  said  high- 
way; and  wrongfully  and  injuriously  kept 
and  continued,  and  negligently  and  wrong- 
fully permitted  the  same  to  remain  therein," 
&c.  In  the  second  count,  it  is  alleged,  that 
the  defendant,  "wrongfully  and  injuriously, 
kept  and  continued,  and  then  and  there  negli- 
gently, knowingly  and  wrongfully  permitted 
to  be  there  kept  and  continued,  and  wrong- 
fully and  injuriously  left  in  and  upon  said 
usually  travelled  path,  &c.,  the  said  cart  and 
logs,"  &c.  The  allegations  in  both  counts 
substantially  charge,  not  only  that  the  de- 
fendant placed  the  cart  and  logs  upon  the 
travelled  road,  but  also,  that  he  wrongfully 
and  negligently  permitted  them  to  remain 
and  be  kept  there.  We  are  strongly  inclined 
to  the  opinion,  that,  in  the  absence  of  all 
proof  that  these  incumbrances  were  placed 
upon  the  public  highway,  by  any  other  per- 
son, the  facts  claimed  by  the  plaintiff,  would 
conduce,  in  some  plausible  degree,  to  prove, 
that  they  were  placed  there,  by  the  defend- 
ant himself.  At  any  rate,  they  prove  con- 
clusively the  other  charges,  that  the  defend- 
ant wrongfully  and  negligently  permitted 
them  to  remain  and  be  kept  there.  Leslie  v. 
Pounds,  4  Taunt.  049. 

Thirdly,  an  objection  is  made  to  the  charge 
of  the  judge  in  relation  to  the  principle  which 
might  have  infiuence  in  the  assessment  of 
damages.  And  cases  from  Massachusetts 
and  New  York,  are  relied  upon  in  support  of 
this  objection.  Whatever  may  have  been  for- 
merly, or  may  be  now  the  practice  of  the 
courts  of  other  states  upon  this  subject,  we 
are  certain  our  own  practice  has  been  uni- 
formly and  immemorially  such  as  the  judge 
recognized  in  his  charge  in  this  case.  Nolu- 
mus  leges  mutare.  We  have  no  disposition 
to  discard  our  own  usages  in  this  respect. 
We  believe  them  to  be  founded  in  the  high- 
est equity,  and  sanctioned  by  the  clearest 
principles.  The  judge  informed  the  jury, 
that  in  estimating  the  damages,  they  had  a 
right  to  take  into  consideration  the  necessary 
trouble  and  expenses  of  the  plaintiff,  in  the 
prosecution  of  this  action. 

In  actions  of  this  character,  there  is  no  rule 
of  damages  fixed  by  law,  as  in  cases  of  con- 
tract, trover,  &c.  The  object  is  the  satisfac- 
tion and  remunei'ation  for  a  personal  injury, 
which  is  not  capable  of  an  exact  cash  valua- 
tion. The  circumstances  of  aggravation  or 
mitigation,— the  bodily  pain,— the  mental  an- 
guish,—the  injury  to  the  plaintiff's  business 
and  means  of  livelihood,  past  or  prospective; 
all  these  and  many  other  circumstances  may 
be  taken  into  consideration,  by  the  jmy,  in 
guiding  their  discretion  in  assessing  damages 
for  a  wanton  personal  injury.  But  these  are 
not  all  that  go  to  make  up  the  amount  of 
damage  sustained.  The  bill  of  the  surgeon, 
and  other  pecuniary  charges  to  which  the 
plaintiff  has  been  necessarily  subjected,  by 
the  misconduct  of  the  defendant,  are  equally 
proper  subjects  of  consideration.  And  shall 
a  defendant,  who  has  refused  redress  for  an 


DAMAGES   FOK   i'EKSOXAL   INJURIES. 


423 


unprovoked  and  severe  persoual  injury,  and 
thus  driven  the  plaintiff  to  seeli  redress  in 
tlie  courts  of  law,  be  permitted  to  say,  that 
the  trouble  and  expense  of  the  remedy  was 
unnecessary,  and  was  not  the  necessary  re- 
sult of  his  own  acts,  connected  with  his  re- 
fusal to  do  justice?    . 

There  is  no  principle  better  established,  and 
no  practice   more   imiversal,    than   that   vin- 
dictive damages,   or  smart  money,   may  be, 
and  is,   awarded,   by   the  verdicts   of  juries, 
in  cases  of  wanton  or  malicious  injuries,  and 
whether  the  form  of  the  action  be  trespass 
or  case.     We  refer  to  the  authorities  before 
cited,  and  also  to  Dennison  v.  Hyde,  6  Conn. 
508;    Wort  v.  Jenkins,  14  Johns.  352;    Mer- 
rills V.  Manufacturing  Co.,  10  Conn.  384;  Ed- 
wards  V.   Beach,   3   Day,  447.     In   this   last 
case,   Daggett,   in  argument  for  the  defend- 
ant, admits,  that  where  an  important  right  is 
in  question,   in  an  action   of   trespass,   "the 
court  have  given  damages  to  indemnify  the 
party    for   the    expense    of    establishing    it." 
The  argument  in  opposition  to  the  doctrine  of 
the  charge,  is  substantially  founded  upon  the 
assumed  principle,   that  the  defendant   can- 
not be  subjected  in  a  greater  sum  in  dam- 
ages than  the  plaintiff  has  actually  sustained. 
But  every  case  in  which  the  recovery  of  vin- 
dictive   damages   has   been   justified,    stands 
opposed  to  this  argument.     And  we  cannot 
comprehend  the  force  of  the  reasoning,  which 
will  admit  the  right  of  a  plaintiff  to  recover, 
as   vindictive  damages,   beyond   the  amount 
of  injury  confessedly  incurred,  and  in  case 
of   an   act  and   injury  equally   wanton   and 
willfully  committed  or  permitted,  will  deny 
to  him  a  right  to  recover  an  actual  indemnity 
for   the    expense    to    which    the    defendant's 
misconduct  has  subjected  him.     In  the  cases 
to   which   we   have   been   referred,   in  other 
states,  as  deciding  a  different  principle,  the 
courts  seem  to  have  assumed,  that  the  tax- 
able costs  of  the  plaintiff  are  his  only  legiti- 
mate compensation  for  the  expense  incurred. 
If  taxable  costs  are  presumed  to  be  equiv- 
alent to  actual,  necessary  charges,  as  a  mat- 
ter of  law;    every  client  knows,  as  a  matter 
of    fact,    they    are    not.     And    legal    fictions 
should  never  be  permitted  to  work  injustice. 
This    court   has    repudiated    this    notion.     It 
was   formerly  holden   in   England,    and  per- 
haps is   so  considered   now,   that   no   action 
would   lie   for   the   injury    sustained   by   the 
prosecution  of  a  vexatious  civil  action,  when 
there   has  been   no  arrest  or   imprisonment; 
because  the  costs  recovered,  compensated  for 
that  injury.     But  this  court,  in  the  case  of 
Whipple  V.  Fuller,  11  Conn.  582,  hold  a  con- 
trary doctrine,  and  say:     "We  cannot,  at  this 
day,   shut  our  eyes   to   the   fact   known   by 
every  body,  that  taxable  costs  afford  a  very 
partial  and  inadequate  remuneration  for  the 
necessary  expenses  of  defending  an  unfound- 
ed suit." 

2.  But  the  question  intended  by  the  parties 
more  particularly  to  be  discussed  and  con- 
sidered, arises  from  that  part  of  the  charge 


of  the  judge  which  relates  to  the  liability  of 
the  defendant  for  the  injury  sustained  by  this 
plaintiff. 

Conceding  that  this  obstruction  was  not 
placed  in  the  public  highway  by  the  agency 
of  the  defeudaut;  the  question  is,  whether 
upon  the  facts  appearing  on  this  motion  and 
found  by  the  jury,  the  defendant  is  liable 
at  all?  It  is  perhaps  material,  that  it  does 
not  appear  how,  nor  by  what  agency,  the  cart 
and  wood  of  the  defendant  were  removed 
from  the  road-side,  where  he  left  them;  nor 
by  what  instrumentality  they  were  placed 
upon  the  travelled  part  of  the  highway, 
where  they  occasioned  the  injury  to  the  plaiu- 
tiff;  because  much  of  the  argument  for  the 
defence  has  proceeded  upon  the  fact,  as  if  it 
had  been  conceded,  that  some  trespasser, 
without  the  defendant's  knowledge,  had  done 
the  act.  Let  this  be  conceded,  and  still  we 
are  not  persuaded  that  it  is  material,  be- 
cause the  question,  after  all,  will  recur,— 
what  was  the  defendant's  legal  duty,  after 
he  had  knowledge  of  the  situation  of  his 
property,  and  after  he  had  reasonable  oppor- 
tunity to  remove  it? 

We  do  not  think  that  any  special  property 
in  the  defendant's  cart  and  wood,  became 
vested  in  any  trespasser,  in  any  such  sense  as 
to  exonerate  this  defendant  from  his  obliga- 
tion so  to  use  his  own  property  as  that  it 
should  not  injure  another.  Indeed,  we  can- 
not comprehend  the  principle  which  has  been 
urged  upon  us  in  argument,  that  any  right 
of  property  is  acquired,  by  a  mere  act  of  wan- 
ton trespass,  unaccompanied  by  a  continued 
possession,  and  not  followed  by  a  judgment 
against  the  trespasser  for  its  value.  This 
property,  for  all  legal  pui-poses,  w\as  in  the 
possession  of  the  defendant;  and  he  alone 
could  maintain  an  action  for  it,  founded  upon 
a  property  right.  Com.  Dig.  tit.  "Biens, 
E.";   Ros.  Ev.  398. 

Nor  would  it  make  any  difference  in  the  re- 
sult, although  the  trespasser,  by  whom  the 
property  was  unlawfully  placed  upon  the 
travelled  road,  could  be  discovered,  and  al- 
though the  plaintiff  could  sustain  an  action 
against  him.  The  defendant's  duties  and  ob- 
ligations could  not  be  varied,  nor  his  respon- 
sibilities discharged,  by  this  circumstance. 
An  action  will  as  well  lie  against  him  who 
continues  a  nuisance,  as  against  him  who 
erected  it.  And  the  cases  are  numerous,  in 
which  a  plaintiff  is  permitted  to  make  his 
election  to  proceed  against  one  of  several 
who  may  be  liable.  Of  course,  it  cannot  be 
material"  to  the  plaintiff's  right  of  recovery, 
nor  can  it  modify  or  change  the  defend- 
ant's liability,  whether  these  obstructions 
were  placed  upon  the  highway,  by  the  force 
of  the  elements,  or  by  human  agency.  The 
question  will  still  recur,  what  was  the  de- 
fendant's duty,  after  the  situation  of  his  prop- 
erty was  made  known  to  him? 

"Sic  utere  tuo  ut  alicnum  non  laedas,"  is 
a  maxim  expressive  of  an  important  and  salu- 
tary   principle,    which    we    think    applicable 


424 


DAMAGES  FOli   PEKSOXAL   INJUlilES. 


to  this  case,  and  to  the  legal  obligations  of 
this  defendant.  Nor  is  it  less  applieable,  if 
it  be  conceded,  that  the  defendant  has  done 
nothing  more  than  knowingly  and  willingly 
to  piTniit  his  property  so  to  remain  as  to  en- 
danger others.  He  thns  made  and  selected 
the  public  highway  as  its  place  of  deposit, 
and  is  equally  responsible,  as  if  he  had  placed 
it  there,  by  his  own  direct  agency. 

It  has  been  very  properly  admitted,  by  the 
defendant,  in  argument,  that  the  owner  of 
beasts,  who  knows  their  dangerous  propensi- 
ties, is  liable  for  the  injurious  consequences 
of  such  propensities,  unless  he  uses  reason- 
able efforts  to  restrain  them.  Thus,  the  own- 
ers of  horses  and  cattle  accustoaiied  to  wan- 
der, and  of  dogs  accustomed  to  bite,  are  lia- 
ble; and  we  perceive  no  essential  distinction 
between  such  cases,  and  the  present.  Here, 
the  defendant  as  well  knew,  that  his  prop- 
erty, placed  in  the  centre  of  the  public  trav- 
elled road,  would  endanger  the  safety  of  trav- 
ellers, as  the  owner  of  a  ravenous  dog  knows, 
that  the  animal  let  loose,  will  do  the  same 
thing.  There  is  no  good  sense  in  the  distinc- 
tion, which  has  been  attempted  to  be  made, 
between  animate  and  inanimate  property,  in 
this  respect.  Nor  can  it  make  an  essential 
difference,  whether  the  injury  be  occasioned 
by  the  peculiar  condition  or  situation  of  real 
or  personal  estate.  If  the  owner  of  a  weak 
and  tottering  wall,  permits  it  to  overhang  a 
public  street,  without  sufficient  shores;  if  the 
owner  of  a  gate  permits  it  to  stand  open 
across  the  side-walk,  at  night,  even  if  thrown 
open  by  a  trespasser;  if  the  owner  of  land, 
upon  which  a  nuisance  has  been  efected,  by 
a  stranger,  permits  it  to  remain;  these  are  all 
cases,  in  which  it  is  admitted,  there  would 
remain  a  legal  responsibility  upon  such  own- 
ers. But  it  is  said,  it  is  by  reason  of  their 
possession  of  the  premises.  In  the  present 
case,  as  we  have  seen,  the  possession  of  this 


defendant  was  equally  certain,  and  his  con 
trol  over  the  property  equally  absolute,  as  in 
the  cases  stated. 

The  burden  of  the  defendant's  claim  has 
been,  that,  as  he  did  not  place  the  property  in 
the  puldic  highway,  he  was  under  no  legal 
obligation  to  remove  it.  Let  this  position  be 
tested,  by  a  few  more  cases,  in  addition  to 
those  already  stated.  A  stranger,  withont 
the  knowledge  of  the  owner,  unlooses  a  fu- 
rious dog  from  his  chain,  or  a  tiger  from  his 
cage;— are  no  efforts  necessary,  on  the  part 
of  the  owner,  to  restrain  them,  after  he  is  in- 
formed of  their  situation?  A  wrong-doer  un- 
fastens the  stage-horses  in  a  public  street;  is 
the  owner  justified  in  permitting  them  to  re- 
main loose,  and  thereby  endanger  the  lives 
of  the  passengers  within,  and  the  travellers 
without? 

This  is  not  a  case,  where  property  has  been 
taken  wrongfully  from  the  owner,  and  placed 
beyond  his  control;  nor  a  case  whex*e  he  can 
be  considered  as  having  abandoned  it,  and  as 
having  no  longer  any  possession  of  it.  This 
defendant  at  all  times  asserted  his  owner- 
ship of  the  property;  and  after  the  injury 
was  sustained,  removed  it  into  his  enelosnre 
and  reclaimed  it  to  his  use.  It  is  therefore 
essentially  unlike  the  case  of  Rex  v.  Watts,  2 
Esp.  GTG.  In  that  case,  tlie  defendant's  ves- 
sel was  a  complete  wreck,  and  not  Avorth  rais- 
ing. It  was  considered  as  abandoned,  by  the 
defendant,  and  therefore,  he  was  under  no 
obligation  to  remove  it. 

If  the  foregoing  principles  be  correct,  it  fol- 
lows, that  the  notice  given  by  the  defendant 
to  the  select-men  of  Branford  to  remove  the 
obstruction,    was    immaterial. 

No  new  trial  is  advised. 

WILLIAMS,  0.  J.,  and  STORRS  and  HIN- 
MAN,  .TJ.,  concurred.  WAITE,  J.,  dissent- 
ed as  to  recovery  of  counsel  fees. 


DAMACJES    FOK    PKKSt)NAL    IN.llUlES. 


425 


GOODHART  v.  PENNSYLVANIA  R.  CO. 
(35  Atl.  191,  177  Pa.  St.  1.) 

>"upreme  Court  of  Poimsylvania.    .Tiily  15.  1890. 

Appeal  from  court  of  common  pleas,  Mifflin 
comity. 

Action  by  James  M.  Goodhart  against  the 
Pennsylvania  Railroad  Company.  There  was 
a  judgment  for  plaintiff,  and  defendant  ap- 
peals.     Reversed. 

Rufus  C.  Elder  and  George  W.  Elder,  for  ap- 
pellant    D.  W.  Woods  &  Son,  for  appellee. 

WILLIAMS,  J.  The  plaintiff  received  the 
injury  complained  of  while  a  passenger  on  one 
of  the  trains  of  the  defendant  company.  The 
train  was  being  moved  in  two  sections.  The 
first  section,  on  which  the  plaintiff  was  riding, 
had  stopped  to  repair  a  break  in  one  of  its  air 
pipes,  and  had  sent  its  flagman  back  to  warn 
^ipproaching  trains.  The  second  section,  hav- 
ing been  misled  by  the  signal  displayed  by  an 
operator  at  a  signal  tower,  came  along  at  full 
speed;  and,  its  engineer  failing  to  notice  the 
flagman  and  his  efforts  to  warn  him  of  the  po- 
sition of  the  first  section,  the  accident  result- 
ed, and  the  plaintiff  was  thrown  from  his  seat, 
and  injured.  At  the  trial  but  two  questions 
were  raised:  First.  Was  the  accident  and 
the  consequent  injury  to  the  plaintiff  due  to 
the  negligence  of  the  employes  of  the  defend- 
ant? If  so,  then,  second,  what  was  the  prop- 
er measure  of  damages  to  be  applied  by  the 
jury?  It  does  not  appear  that  any  contest 
was  made  over  the  first  of  these  questions. 
The  only  real  ground  for  controversy  was 
over  the  measure  of  damages,  and  the  evi- 
dence should  have  been  confined  to  the  issues 
of  fact  that  related  to  this  controversy.  The 
evidence  in  regard  to  the  examination  made 
by  Dr.  Morton  was  not  directed  to  the  extent 
of  the  plaintiff's  injuries,  but  to  the  severity 
of  the  examination.  Its  evident  object  was 
to  persuade  the  jury  that  the  character  of  the 
examination  and  the  conduct  of  Dr.  Morton 
and  his  assistants  was  unnecessarily  harsh 
and  annoying,  and  was  a  proper  subject  to  be 
considered  in  assessing  the  plaintiff's  dam- 
ages. But  it  must  be  borne  in  mind  that  a 
claim  was  being  made  against  the  railroad 
company  for  damages  based  upon  an  alleged 
injury  received  in  consequence  of  the  accident 
already  referred  to.  In  order  to  determine  in- 
telligently the  extent  of  its  liability,  it  was  im- 
portant for  the  defendant  to  know  the  nature 
of  the  injury,  and  the  extent  to  which  the  plain- 
tiff was  a  ff  ected  by  it.  This  could  only  be  known 
as  the  result  of  a  medical  examination  made 
by  competent  and  experienced  physicians. 
Dr.  Morton  and  his  assistants  were  selected 
as  proper  persons  to  make  the  examination, 
and  advise  the  defendant  company  of  their 
estimate  of  the  plaintiff's  condition,  and  its 
consequent  liability.  If,  in  the  discharge  of 
their  professional  duty  to  their  employer,  they 
went  beyond  what  was  reasonably  necessary 


and  employed  methods  and  tests  that  were 
cruel,  and  such  as  the  judgment  of  the  med- 
ical profession  does  not  approve,  and  thereby 
inflicted  injury  on  the  plaintiff,  they  are  liable 
for  their  own  trespass,  whether  committed 
with  malice  or  through  ignorance.  But  rudt^ 
ness  and  incivihty  in  the  manner  in  which  the 
examination  was  conducted,  if  rudeness  or 
incivility  can  be  affirmed  of  anything  that  was 
said  or  done  in  that  connection,  could  throw 
no  light  on  the  extent  of  the  injury  actually 
suffered  by  the  plaintiff,  and  the  evidence  re- 
ferred to  in  the  first  and  second  assignments 
of  error  should  have  been  rejected. 

The  remaining  sixteen  assignments  of  error 
relate,    more   or   lesg   directly,    to   the    single 
question  the  case  presented,  viz.  the  measure  of 
damages,  and  can  be  most  conveniently  consid- 
ered together.    Damages  for  a  personal  injury 
consist  of  three  principal  items:      First,  the 
expenses  to  which  the  injured  person  is  sub- 
jected by  reason  of  the  injury  complained  of; 
second,  the  inconvenience  and  suffering  nat- 
urally  resulting    from    it;    third,    the   loss    of 
earning  power,  if  any,  and  whether  tempora- 
ry or  permanent,   coasequent  upon  the  char- 
acter of  the  injury.     Owens  v.  Railway  Co., 
155  Pa.   St.  334,  26  Atl.  748.     The  expenses 
for  which   a  plaintiff  may   recover   must   be 
such  as  have  been  actually  paid,  or  such  as, 
in  the  judgment  of  the  jury,  are  reasonably 
necessary  to  be  incurred.     The  plaintiff  can- 
not recover  for  the  nursing  and  attendance  of 
the    members    of   his   own    household,    unlt>ss 
they  are  hired  servants.     The  care  of  his  wife 
and  minor  children  in  ministering  to  his  needs 
involves  the  performance  of  the  ordinary  of- 
fices of  aft'ection,  which  is  their  duty;    but  it 
involves   no   legal   liability  on   his   part,    an(i 
therefore  affords  no  basis  for  a  claim  against 
a  defendant  for  expenses  incurred.     A   man 
may  hire  his  own  adult  children  to  work  for 
him  in  the  same  manner  and  with  same  ef- 
fect that  he  may  hire  other  persons,  but,  in 
the  absence  of  an  express  contract,  the  law 
will  not  presume  one,  so  long  as  the  family 
relation    continues.     Pain    and    suffering    are 
not  capable  of  being  exactly  measured  by  an 
equivalent  in  money,  and  we  have  repeatedly 
said    that   they   have   no  market  price.     The 
question    in   any   given    case   is   not    what   it 
would  cost  to  hire  some  one  to  undergo  the 
measure  of  pain  alleged  to  have  been  suffered 
by  the  plaintiff,  but  what,  under  all  the  cir- 
cumstances,   should  be  allowed   the   plaintiff 
in  addition  to  the  other  items  of  damage  to 
which  he  is  entitled,  iu  consideration  of  suf- 
fering necessarily  endured.     Baker  v.   Penn- 
sylvania   Co..    142    Pa.    St.   503,    21   Atl.    979. 
This  should  not  be  estimated  by  a  sentimental 
or  fanciful  standard,  but  in  a  reasonable  man- 
ner, as  it  is  wholly  additional  to  a  pecuniary 
compensation  afforded  by  the  first  and  third 
items  that  enter  into  the  amount  of  the  ver- 
dict in   such  cases.     By   way  of  illustration, 
let  us  assume  that  a  plaintiff  has  been  wholly 
disabled  from  labor  for  a  period  of  20  d.^ys 
in  consequence  of  an  injury  resulting  from  die 


426 


DAMAGES  FOIi   PERSONAL   INJURIES. 


nesligonce  of  another.     This  lost  time  is  ca- 
pable  of  exact  compensation.     It  will  require 
so    much    money   as   the   injured    man    might 
have  reasonably  tarned  in  the  same  time  by 
the  pursuit  of  his  ordinary  calling.     But  let 
us  farther  assume  that  these  days  of  enforced 
idleness  have  been  days  of  severe  bodily  suf- 
fering.    The  question  then  presented  for  the 
consideration  of  the  jury  would  be:     What  is 
it  reasonable  to  add  to  the  value  of  the  lost 
time  in  view  of  the  fact  that  the  days  were 
filled  with  pain,  instead  of  being  devoted  to 
labor?     Some  allowance  has  been  held  to  be 
proper;   but,  in  answer  to  the  question,  "How 
mucli?"   the  only   reply  yet   made   is   that   it 
should  be  reasonable  in*amount.     Pain  can- 
not be  measured  in  money.     It  is  a  circum- 
stance, however,  that  may  be  taken  into  the 
account  in  fixing   the  allowance   that  should 
be  made  to  an  injured  party  by  way  of  dam 
ages.     An  instruction  that  leaves  the  jury  to 
regard  it  as  ar  independent  item  of  damages, 
to  be  compensated  by  a  sum  of  money  tliat 
may  be  regarled  as  a  pecuniary  equivalent, 
is  not  only  inexact,  but  it  is  erroneous.     The 
word    'compensation."    in    the    phrase    "com- 
pensation for  pain  and  suffering,"  is  not  to  be 
understood  as  nieanmg  price  or  value,  bat  a;> 
describing  an  allowance  looliing  towards  rec- 
ompense for  01-  made  because  of  the  sulfering 
consequent  upon  the  injury.    In  computing  the 
damages    sustained     by    an    injured    person, 
therefore,  the  calculation  may  include  not  on- 
ly loss  of  time  and  loss  of  earning  power,  but, 
in   a    proper  case,    an    allowance   because   of 
suffering.     The   ihird  item,  the  loss  of  earn- 
ing power,  is  not  always  easy  of  calculation. 
It  involves  an  inquiry   into  the  value  of  the 
labor,  physical  or  mtellectual,  of  the   person 
injured,  before  the  accident  happened  to  him, 
and   the  ability  of  the   same   person   to  earn 
money  by  labor,  physical  or  intellectual,  after 
the  injury  was  received.    Profits  derived  from 
an  investment  or  the  management  of  a  busi- 
ness enterprise  are  not  earnings.     The  deduc- 
tion from  such  profits  of  tlie  legal  rate  of  in- 
terest on  the  monty  employed  does  not  give 
to  the  balance  of  the  profits  the  character  of 
earnings.     The    word    "earnings"    means   the 
fruit  or  reward  of  labor;    the  price  of  services 
perlurmed.    And.  Law  Diet.  3'M.    Profits  rep- 
resent the  net  gain  made  from  an  investment, 
or  from  the  prosecution  of  some  business,  aft- 
er the  payment  of  all  expenses  incurred.     The 
net  gain  depends  largely  on  other  circumstan- 
ces than  the  earning  capacity  of  the  persons 
managing  the  business.     The  size  and   loca- 
tion of  the  town  selected,  the  character  of  the 
commodities  dealt  in,  the  degree  of  competi- 
tion   encountered,    the   measure  of  prosperity 
enjoyed  by  the  coipmunity,  may  malie  an  en- 
terprise a  decided  success,  which  under  less 
favorable  circumstances,  in  the  hands  of  the 
same  persons,  ra'ght  turn  out  a  failure.     The 
profits  of  a  business  with  which  one  is  con- 
nected cannot  therefore  be  made  use  of  as  a 
measure  of  his  earning  power.    Sucli  evidence 
may  tend  to  show  the  possession  of  Imsiness 


qualities,  but  it  does  not  fix  their  value.  Its^ 
admission  for  that  purpose  was  error.  It  was 
also  error  to  treat  this  subject  of  the  value 
of  earning  power  as  one  to  be  settled  by  ex- 
pert testimony.  An  expert  in  banliiug  or  mer- 
chandizing might  form  an  opinion  about  what 
a  man  possessing  given  business  qualifications 
ought  to  be  able  to  earn,  but  this  is  not  the 
question  the  jury  is  to  determine.  They  are 
interested  only  in  knowing  what  he  did  ac- 
tually earn,  or  vvhat  his  services  were  rea- 
sonably worth,  prior  to  the  time  of  his  injury. 
In  settling  this  question,  they  sliould  consider 
not  only  his  past  earnings,  or  the  fair  value 
of  services  such  as  he  was  able  to  render,  but 
his  age,  state  of  health,  business  habits,  and 
manner  of  livmg.  McHugh  v.  Schlosser,  150 
Pa.  St.  480,  28  Atl.  291.  The  basis  on  which 
this  calculation  must  rest  is  not  tlie  possibili- 
ty, as  judged  of  by  the  expert  witness,  but  the 
cold,  commonplace  facts  as  proved  by  those 
who  knew  them.  It  does  not  follow,  as  a 
necessai-y  conclusion,  that  the  services  of  the 
plaintiff  were  worth  no  more  at  the  time  of 
his  injury  than  the  $80  per  month  he  was 
receiving  from  the  ^ompany  in  whose  service 
he  was;  but  the  fact  that  he  accepted  service 
at  that  price  was  an  important  one,  and  was 
persuasive,  though  not  conclusive,  evidence, 
that  the  price  was  considered  by  himself  a 
fair  one. 

We  think  the  twelfth  assignment  also  points 
out  a  substantial  error.  The  plaintiff  was 
hurt  on  tlie  20th  day  of  September,  1893. 
In  May,  1894,  he  was  appointed  postmaster  at 
Lewistown,  Pa.  at  a  salary  which  leaves  him 
a  net  balance  of  $540  per  year  after  the  pay- 
ment of  all  expenses.  He  is  still  holding  the 
ofiice  and  in  receipt  of  the  salary.  Notwith- 
standing this  fact,  the  learned  judge  said  to 
the  jury:  "It  seems  to  the  court— and  we  do 
not  understand  that  it  is  denied  by  the  de- 
fendant—that, since  the  accident,  he  has  been 
totally  disabled  and  utterly  unable  to  do  any- 
thing." For  18  months  before  this  instruc- 
tion was  given,  the  plaintiff  had  been  receiv- 
ing the  salary  attached  to  the  oflSce  of  post- 
master at  Lewistown,  and  had  been  giving 
sufficient  attention  to  the  duties  of  the  office 
to  see  that  they  were  properly  performed  by 
his  clerks  and  deputies.  In  other  words,  he 
had  been  earning  $540  per  year,  and  was  still 
earning  it  at  the  time  the  trial  took  place. 

Another  subject  requires  consideration.  The 
verdict  rendered  by  fhe  jury  gives  the  calcu- 
lation upon  which  the  enormous  sum  award- 
ed to  the  plaintiff  was  based.  From  this  it 
appears  that  the  sum  of  $19.52(J.50  was  given 
as  the  cost  of  an  annuity  of  $1,750  per  annum 
for  19  years.  This  calculation  assumes  (1> 
that  the  plaintiff's  earning  power  was  nearly 
twice  as  great  as  he  had  himself  offered  it 
for  to  the  company  whose  president  and  man- 
ager he  was.  It  assumes  (2)  that  he  had  a 
reasonable  expectation  of  life  for  19  years, 
being  at  the  time  of  the  trial  about  58  years 
old.  It  assumes  (8)  that  liis  earning  power. 
;   instead  of  steadily  decreasing  with  increasing 


DAMAGES  FOR   PERSONAL   INJURIES. 


427 


years,  would  hold  up  at  its  maximum  to  the 
veiy  end  of  life.  It  assumes,  in  the  fourth 
place,  that  he  is  entitled  to  recover,  not  only 
the  present  worth  of  his  future  earnings,  as 
the  jury  has  estimated  them,  but  a  sufficient 
sum  to  enable  him  to  go  out  into  the  market, 
and  purchase  an  annuity  now, equal  to  his  esti- 
mated earnings.  The  first,  second,  and  third 
of  these  are  assumptions  of  fact.  The  fourth 
is  an  assiunptioD  of  law,  and  is  clearly  wrong. 


When  future  payments  are  to  be  anticipateil 
and  capitalized  in  a  verdict,  the  plaintift'  is 
entitled  only  to  their  present  worth.  This  is 
the  exact  equivalent  of  the  anticipated  sums. 

Prom  what  has  been  now  said,  it  follows 
that  substantially  all  of  the  assignments  of 
error  are  sustained.  The  judgment  is  revers- 
ed, and  a  venire  facias  de  novo  awarded. 

STERRETT,  C.  J.,  dissents. 


428 


DAMAGES  FOR  PERSONAL  INJURIES. 


LARSON  V.  CHASE. 

(50  N.  W.  238,  47  Minn.  307.) 
Supreme  Court  of  Minnesota.     Nov.  10,  1891. 
Appeal  from  district  court,  Heunepiu  coun- 
ty; Hoolicr,  Judge. 

Action  by  Lena  Larson  against  Charles  A. 
Cliase  for  the  unlawful  mutilation  and  dis- 
section of  tlie  body  of  plaintiffs  Inisltand. 
Demurrer  to  complaint  overruled.  Defend- 
ant appeals.     Attirmed. 

Bradish  &  Dunn  and  Babcock  &  Garrigues, 
for  appellant.  Arctander  &  Arctander,  for 
resitondent. 

MITCHELL,  J.  This  was  an  action  for 
damages  for  the  unlawful  mutilation  and  dis- 
section of  the  body  of  plaintiff's  deceased 
husband.  The  complaint  alleges  that  she  was 
the  person  charged  with  the  burial  of  the 
body,  and  entitled  to  the  exclusive  charge 
and  control  of  the  same.  The  only  damages 
alleged  are  mental  suffering  and  nervous 
shock.  A  demurrer  to  the  complaint,  as 
not  stating  a  cause  of  action,  was  oven-uled, 
and  the  defendant  appealed. 

The  contentions  of  defendant  may  be  re- 
solved into  two  propositions:  First.  That 
the  widow  has  no  legal  interest  in  or  right 
to  the  body  of  her  deceased  husband,  so  as 
to  enable  her  to  maintain  an  action  for  dam- 
ages for  its  mutilation  or  disturbance;  that, 
if  any  one  can  maintain  such  an  action,  it  is 
the  personal  representative.  Second.  That  a 
dead  body  is  not  property,  and  that  mental 
anguish  and  injury  to  the  feelings,  independ- 
ent of  any  actual  tangible  injury  to  person 
or  property,  constitute  no  ground  of  action. 
Time  will  not  permit,  and  the  occasion  does 
not  require,  us  to  enter  into  any  extended 
discussion  of  the  history  of  the  law,  civil, 
common,  or  ecclesiastical,  of  burial  and  the 
disposition  of  the  body  after  death.  A  quite 
full  and  interesting  discussion  of  the  sub- 
ject will  be  found  in  the  report  of  the  referee 
(Hon.  S.  B.  Ruggles)  in  Re  Beekman  Street, 
4  Bradf.  Sur.  503.  See,  also,  Peirce  v.  Pro- 
prietors, 10  R.  I.  227,  19  Am.  Law  Rev.  251, 
10  Alb.  Law  J.  71.  Upon  the  questions  who 
has  the  right  to  the  custody  of  a  dead  body 
for  the  purpose  of  burial,  and  what  remedies 
such  person  has  to  protect  that  right,  the 
English  common-law  authorities  are  not  very 
helpful  or  particularly  in  point,  for  the  rea- 
son that  from  a  very  early  date  in  that  coun- 
try the  ecclesiastical  courts  assumed  exclu- 
sive jurisdiction  of  such  matters.  It  is  easy 
to  see,  therefore,  why  the  common  law  in  its 
early  stages  refused  to  recognize  the  idea  of 
pi'operty  in  a  corpse,  and  treated  it  as  be- 
longing to  no  one  unless  it  was  the  church. 
The  repudiation  of  the  ecclesiastical  law 
and  of  ecclesiastical  courts  by  the  Ameri- 
can colonies  left  the  temporal  courts  the 
sole  protector  of  the  dead  and  of  the  liv- 
ing in  their  dead.  Inclined  to  follow  the 
precedents  of  the  English  common  law.  these 
courts    were    at    first    slow    to    realize    the 


changed  condition  of  things,  and  the  conse- 
quent necessity  that  they  should  take  cogni- 
zance of  these  matters  and  administer  reme- 
dies as  in  other  analogous  cases.  This  has 
l)een  accomplished  by  a  process  of  gradual 
development,  and  all  courts  now  concin-  in 
holding  that  the  I'ight  to  the  possession  of  a 
dead  body  for  the  purposes  of  decent  burial 
belongs  to  those  most  intimately  and  closely 
connected  with  the  deceased  by  domestic  ties, 
and  tliat  this  is  a  right  which  the  law  Avill 
recognize  and  protect.  The  general,  if  not  uni- 
versal, doctrine  is  that  this  right  belongs  to 
the  surviving  husband  or  wife  or  to  the  next- 
of  kin;  and,  while  there  are  few  direct  au- 
thorities upon  the  subject,  yet  we  think  the 
general  tendency  of  the  courts  is  to  hold  that, 
in  the  absence  of  any  testamentary  disposi- 
tion, the  right  of  the  surviving  wife  (if  liv- 
ing with  her  husband  at  the  time  of  his 
death)  is  paramount  to  that  of  the  next  of 
kin.  This  is  in  accordance,  not  only  with 
common  custom  and  general  sentiment,  but 
also,  as  we  think,  with  reason.  The  wife  is 
certainly  nearer  in  point  of  relationship  and 
affection  than  any  other  person.  She  is 
the  constant  companion  of  her  husband  dur- 
ing life,  bound  to  him  by  the  closest  ties  of 
love,  and  should  have  the  paramount  right 
to  render  the  last  sacred  services  to  his  re- 
mains after  death.  But  this  right  is  in  the 
nature  of  a  sacred  trust,  in  the  performance 
of  which  all  are  interested  who  were  allied 
to  the  deceased  by  the  ties  of  family  or 
friendship,  and,  if  she  should  neglect  or  mis- 
use it,  of  course  the  courts  would  have  the 
power  to  regulate  and  control  its  exercise. 
We  have  no  doubt,  therefore,  that  the  plain- 
tiff had  the  legal  right  to  the  custody  of 
the  body  of  her  husband  for  the  purposes  of 
preservation,  preparation,  and  burial,  and 
can  maintain  this  action  if  maintainable  at 
all. 

The  doctrine  that  a  corpse  is  not  property 
seems  to  have  had  its  origin  in  the  dictum 
of  Lord  Coke,  (3  Co.  Inst.  20.3.)  where,  in  as- 
serting the  authority  of  the  church,  he  says: 
"It  is  to  be  observed  that  in  every  sepul- 
chre that  hath  a  monument  two  things  are 
to  be  considered,  viz.,  the  monument,  and 
the  sepulture  or  burial  of  the  dead.  The 
burial  of  the  cadaver  that  is  caro  data  ver- 
mibus  [flesh  given  to  worms]  is  nullius  in 
bonis,  and  belongs  to  ecclesiastical  cogni- 
zance; but  as  to  the  monument  action  is  giv- 
en, as  hath  been  said,  at  the  common  law,  for 
the  defacing  thereof."  If  the  proposition  that 
a  dead  bod.y  is  not  property  rests  on  no  bet- 
ter foundation  than  this  etymology  of  the 
word  "cadaver,"  its  correctness  would  be 
more  than  doubtful.  But  while  a  portion  of 
this  dictum,  severed  from  its  context,  has 
beem  repeatedl.v  quoted  as  aiithoritj'  for  the 
proposition,  yet  it  will  be  observed  that  it  is 
not  asserted  that  no  individual  can  have  any 
legal  interest  in  a  corpse,  but  merely  that  the 
burial  is  nullius  in  bonis,  which  was  legally 
true   at   common   law   at  that   time,    as    the 


DAMAGES  FOR  PERSONAL   INJURIES. 


42S) 


■whole  matter  of  sepulture  and  custody  of  the 
body  after  burial  was  within  the  exclusive 
cosiiiizance  of  the  church  and  the  ecclesias- 
tical courts.  But  whatever  may  have  been 
the  I'ule  in  England  under  the  ecclesiastical 
law,  and  while  it  may  be  true  still  that  a 
dead  body  is  not  property  in  the  common 
commerical  sense  of  tliat  term,  yet  in  this 
country  it  is,  so  far  as  we  know,  universally 
held  that  those  who  are  entitled  to  the  pos- 
session and  custody  of  it  for  piu'poses  of  de- 
cent burial  have  certain  Ic.i;;!!  rights  to  and 
in  it  which  the  law  recognizes  and  will  pro- 
tect. Indeed,  the  mere  fact  that  a  pci-sDU  has 
exclusive  rights  over  a  body  for  the  purposes 
of  burial  leads  necessarily  to  the  conclusion 
that  it  is  his  property  in  the  broadest  and 
most  genei'al  sense  of  that  term,  viz.,  some- 
thing over  which  the  law  accords  him  ex- 
clusive control.  But  this  whole  subject  is 
only  obscured  and  confused  by  discussing  the 
(piestion  whether  a  corpse  is  property  in  the 
ordinary  commercial  sense,  or  whetlierft  has 
any  vaUie  as  an  article  of  trattic.  The  im- 
portant fact  is  that  the  custodian  of  it  has 
a  legal  right  to  its  possession  for  the  purposes 
of  preservation  and  burial,  and  that  any  in- 
terference with  tliat  right  by  mutilating  or 
otherwise  disturbing  the  body  is  an  actionable 
wrong.  And  we  thinly  it  may  be  safely  laid 
down  as  a  general  rule  that  an  injury  to  any 
right  recognized  and  protected  by  the  com- 
mon law  will,  if  the  direct  and  proximate 
consequence  of  an  actionable  wrong,  be  a 
subject  for  compensation. 

It  is  also  elementary  that  while  the  laAv 
as  a  general  rule  only  gives  compensation  for 
actual  injury,  yet,  whenever  the  breach  of 
a  contract  or  the  invasion  of  a  legal  right  is 
establislied,  the  law  infers  some  damage, 
and,  if  no  evidence  is  given  of  any  particular 
amount  of  loss,  it  declares  the  right  by 
awarding  nominal  damages.  Every  injury 
imi)orts  a  damage.  Hence  the  complaint  stat- 
ed a  cause  of  action  for  at  least  nominal  dam- 
ages. We  think  it  states  more.  There  has 
been  a  great  deal  of  misconception  and  con- 
fusion as  to  when,  if  ever,  mental  suffering, 
as  a  distinct  element  of  damage,  is  a  subject 
for  compensation.  This  has  frequently  re- 
sulted from  courts  giving  a  wrong  reason  for 
a  correct  conclusion  that  in  a  given  case  no 
recovery  could  be  had  for  mental  suffering, 
placing  it  on  the  ground  that  mental  suffer- 
ing, as  a  distinct  element  of  damage,  is  nev- 
er a  proper  subject  of  compensation,  when 
the  correct  ground  was  that  the  act  complain- 
ed of  was  not  an  infraction  of  any  legal 
right,  and  hence  not  an  actionable  M'rong  at 
all,  or  else  that  the  mental  suffering  was  not 
the  direct  and  proximate  effect  of  the  Avrong- 
ful  act.  Counsel  cites  the  leading  case  of 
Lynch  v.  Knight,  9  H.  L.  Cas.  .577-598.  We 
thinlc  he  is  laboring  under  tlie  same  miscon- 
ception of  the  meaning  of  the  language  used 
in  that  case  into  which  coiu'ts  have  not  infre- 


quently fallen.     Taking  the  language  in  con- 
nection with  the  question  actually  before  the 
court,  that  case  is  not  authority  for  defend- 
ant's position.     It  is  unquestionably  the  law, 
as  claimed  by  appellant,  tliat  "for  the  law  to 
furnish  redress  there  must  be  an  act  wliicli. 
under  the  circumstances,  is  wrongful;    and  it 
must  take 'effect  upon  the  person,  the  prop- 
erty, or  some  other  legal  interest,  of  the  par- 
ty complaining.    Neither  one  without  the  otli- 
er  is  sufficient."    This  is  but  another  way  of 
saying  that  no  action  for  damages   will    lie 
for  an  act  which,  though  wrongful,  infringed 
no   legal    right   of   the   plaintiff,   altliougli    it 
may  have  caused  him  mental  suffering.    But, 
where   the   wrongful    act    constitutes   an   in- 
fringement on  a  legal  right,  mental  suffering 
may   be   recovered   for,    if   it   is   the   direct, 
proximate,  and  natural  result  of  the  wrong- 
ful act.     It  was  early  settled  that  substan- 
tial damages  might  be  recovered  in  a  class  of 
torts  where  the  only  injury  suffered  is  men- 
tal,—as  for  example,  an  assault  without  phys- 
ical contact.     So,  too,  in  actions  for  false  im- 
prisonment,   where     the    plaintiff     was    not 
touched  by  the  defendant,  substantial  dam- 
ages have  been  recovered,  though  physicaliy 
the  plaintiff  did  not  suffer  any  actual  detri- 
ment.   In  an  action  for  seduction  substantial 
damages  are  allowed  for  mental   sufferings, 
although  there  be  no  proof  of  actual  pecu- 
niary damages  other  than  the  nominal  dam- 
ages which  the  law  presumes.     The  same  is 
true  in  actions  for  breach  of  promise  of  mar- 
riage.    Wherever  the  act  complained  of  con- 
stitutes a  violation  of  some  legal  right  of  the 
plaintiff,  Avhich  always,  in  contemplation  of 
laAv,  causes  injury,  he  is  entitled  to  recover 
all    damages    wliich    are   the   proximate   and 
natural    consequence    of    the    wrongful    act. 
That  mental  suffering  and  injury  to  the  feel- 
ings   would    be    ordinarily    the    natural    and 
proximate  result  of  knowledge  that   the  re- 
mains of  a  deceased  husband  had  been  mu- 
tilated  is   too   plain   to   admit   of  argument. 
In  Meagher  v.  Driscoll,  90  Mass.  281,  where 
the  defendant  entered  upon  plaintiff's  laud, 
and  dug  up  and  removed  the  dead  body  of 
his  child,  it  was  held  that  plaintiff"  might  re- 
cover compensation  for  the  mental  anguish 
caused  thereby.     It  is  true  that  in  that  case 
the  court  takes   occasion   to   repeat  the    old 
saying  that  a  dead  body  is  not  property,  and 
makes  the  gist  of  the  action  the  trespass  up- 
on  plaintiff's   land;    but  it   would   be   a   re- 
proach to  the  law  if  a  plaintiff's  right  to  re- 
cover for  mental  anguish  resulting  from  the 
mutilation    or   other   disturbance    of    the    re- 
mains of  his  dead  should  be  made  to  depend 
upon  whether  in  committing  the  act  the  de- 
fendant also  committed  a  technical  trespass 
upon   plaintilT's  premises,    while   everybody's 
common  sense  would  tell  him  that  the  real 
and  substantial  wrong  was  not  the  trespass 
on  the  land,  but  the  indignity  to  the  dead. 
Order  affirmed. 


430 


DAMAGES  FOK   PERSONAL   INJURIES. 


SLOANE  et  al.  v.  SOUTHERN  CAL.  RY. 
CO.     (L.  A.  48.)  1 

(44  Pac.  320,  111  Cal.  668.) 
Supreme  Court  of  California.     March  23,  1896. 

Department  1.  Appeal  from  superior  court, 
Riverside  county. 

Action  by  Annie  L.  Sloane  and  anothier 
asaiust  the  Southern  California  Railway 
Company.  From  a  judgment  for  plaintiff, 
and  from  an  order  denying  a  new  trial,  de- 
fendant apiioals.  On  condition  that  plaintiff 
remit  a  part  of  the  amount  recovered,  the 
Older  and  judgment  are  affinned. 

W.  J,  Hunsaker,  for  appellant.  Sweet, 
Sloane  &  Kirby  and  Works  &  Works,  for  re- 
spondents. 

HARRISON,  J.  The  plaintiff  Annie  L. 
Sloane  purchased  a  ticket,  April  8,  18'J4,  from 
the  agent  of  the  defendant,  at  North  Pomona, 
for  passage  from  that  place  to  San  Diego, 
and  on  the  same  day  took  passage  upon  the 
regular  passenger  train  of  the  defendant. 
Before  reaching  San  Bernardino  the  conduct- 
or of  the  train  took  up  her  ticket,  without 
giving  her  any  check  or  other  evidence  of  her 
right  to  be  carried  to  San  Diego,  and  on  ar- 
riving at  San  Bernardino  she  was  required 
to  change  cars,  and  enter  another  train  of 
cars  of  the  defendant.  After  entering  this 
ti-ain  of  cars  the  conductor  in  charge  thereof 
demanded  of  her  her  ticket,  and  upon  her 
stating  to  him  that  she  had*given  it  to  the 
conductor  of  the  other  train,  and  the  circum- 
stances therewith,  she  was  informed  by  him 
that  she  must  either  pay  her  fare  or  leave 
the  train.  She  had  no  money  with  her,  and 
Avhen  the  train  reached  East  Riverside  she 
left  the  car.  After  getting  off  the  train,  she 
started  to  walk  back  as  far  as  Colton  upon 
the  railroad  track,  a  distance  of  about  three 
miles,  but,  after  walking  a  portion  of  the 
way,  secured  a  seat  in  a  passing  vehicle,  and 
was  carried  to  Colton,  where  she  spent  the 
night  with  her  sister-in-law.  On  the  next 
day.  having  borrowed  some  money  with 
which  to  purchase  another  ticket,  she  re- 
sumed her  passage,  and  was  carried  to  San 
Diego.  The  present  action  was  brought  to 
recover  damages  sustained  by  reason  of  the 
wrongful  acts  of  the  defendant's  agents.  The 
cause  was  tried  by  a  jury,  and  a  verdict  ren- 
dered in  favor  of  the  plaintiffs  for  the  sum 
of  $1,41)0.  From  the  judgment  entered  there- 
on, and  an  order  denying  a  new  trial,  the 
defendant  has  appealed. 

It  is  contended  by  the  appellant  tliat,  as  the 
plaintiff  left  the  car  at  East  Riverside  in  ac- 
cordance with  the  previous  directions  of  the 
conductor,  and  no  personal  violence  was  used 
or  displayed  towards  her,  her  only  right  of 
action  is  for  a  breach  of  the  defendant's  con- 
tract to  cai'ry  her  to  San  Diego,  and  that  the 
extent  of  her  recovery  therefor  is  the  price 


1  Rehearing  denied. 


paid  for  the  second  ticket,  and  a  reasonable 
compensation  for  the  loss  of  time  sustained 
by  her.  The  plaintiff's  right  of  action  against 
the  defendant  is  not,  however,  limited  to  the 
breach  of  its  contract  to  carry  her  to  San 
Diego,  but  includes  full  redress  for  the 
wrongs  sustained  by  her  by  reason  of  the 
defendant's  violation  of  the  obligations  which 
it  assumed  in  entering  into  such  contract. 
If  she  was  wrongfully  prevented  by  the  de- 
fendant from  completing  the  passage  to  San 
Diego  for  which  it  had  contracted  with  her, 
she  could  either  bring  an  action  simply  for 
the  breach  of  this  contiact,  or  she  could  sue 
it  in  tort,  for  its  violation  of  the  duty,  as  a 
common  carrier,  which  it  assumed  upon  en- 
tering into  such  contract.  Jones  v.  The  Cor- 
tez,  17  Cal.  487;  Head  v.  Railroad  Co.,  79 
Ga.  358,  7  S.  E.  217;  Carsten  v.  Railroad  Co., 
44  Minn.  454,  47  N.  W.  49.  The  complaint  in 
the  present  case  is  not  merely  for  the  breach 
of  the  contract,  nor  is  it  merely  for  the  v,-rong 
committed  in  excluding  her  from  the  car,  but 
it  is  to  recover  the  damages  sustained  by  her 
by  reason  of  the  wrongful  acts  of  the  de- 
fendant committed  in  the  violation  of  its  con- 
tract. It  is  in  the  nature  of  an  action  on 
the  case,  arising  out  of  the  conduct  of  the 
defendant  in  wrongfully  depriving  her  of  her 
ticket,  and  .thereafter,  by  reason  of  such 
wrongful  act,  excluding  her  from  its  car,  and 
refusing  to  carry  out  its  contact.  Although 
her  action  is  for  the  tort  resulting  from  the 
defendant's  conduct,  the  wrong  which  pro- 
duced that  result  was  twofold, — depriving 
her  of  the  evidence  of  its  contract  to  carry 
her  to  San  Diego,  and  afterwards  excluding 
her  from  its  car  for  failure  to  produce  the 
evidence  of  which  it  had  wrongfully  deprived 
her.  For  the  purpose  of  giving  her  this  right 
of  action,  it  is  immaterial  that  these  differ- 
ent acts  were  by  different  agents  of  the  de- 
fendant. If  the  conductor  who  took  up  the 
ticket  had  himself,  at  a  subsequent  point  in 
the  trip,  excluded  her  for  failure  to  exhibit 
it,  the  liability  of  the  defendant  would  not 
be  questioned.  Its  liability  is  the  same,  not- 
with.standing,  for  its  own  convenience,  it  has 
intrusted  the  managi_ment  of  its  train  to  dif- 
ferent conductors.  Muckle  v.  Railroad  Co., 
79  Hun,  32,  29  N.  Y.  Supp.  732.  The  plaintiff 
was  not  called  upon  to  question  the  right 
of  the  first  conductor  in  taking  up  her  ticket, 
and  it  was  the  duty  of  the  defendant  to  see 
that  she  was  not  thereby  deprived  of  her 
riglit  to  a  passage  upon  its  cars. 

In  her  testimony  regarding  her  exclusion 
from  the  cars,  the  plaintiff  recounted  the  in- 
terview between  her  and  the  conductor,  and 
the  manner  in  which  she  was  directed  to 
leave  the  car,  and  it  was  claimed  at  the  trial 
that  she  had  been  thereby  subjected  to  hu- 
miliation and  indignity,  for  which  she  was 
entitled  to  redress.  Counsel  for  the  appel- 
lant does  not  question,  as  a  proposition  of 
law,  that,  if  the  conductor  was  insulting  and 
violent  in  removing  her,  such  treatment  forms 
an  element  of  damage  to  be  recovered   by 


DAMAGES  FOR  PERSONAL   INJURIES. 


431 


her;  but  he  maintains  that  the  evidence  fails 
to  show  such  conduct.  The  evidence  was, 
however,  before  the  jury,  and  they  were 
properly  instructed  in  reference  thereto;  and, 
althougjh  it  might  be  urged  upon  them  that 
this  evidence  was  insutiicieut  to  establish 
such  conduct,  we  cannot  say,  as  a  matter  of 
law,  that  it  was  not  proper  to  submit  the 
question  to  their  judgment. 

Evidence  was  given  at  the  trial  tending  to 
show  that  Mrs.  Sloane  had  been  previously 
subject  to  insomnia,  and  also  to  nervous 
shoclis  and  paroxysms,  and  that,  owing  to  her 
physical  condition,  she  was  subject  to  a  recur- 
i-ence  of  these  shoclcs  or  nervous  disorder  if 
placed  imder  any  great  mental  excitement; 
and  that,  by  reason  of  the  excitement  caused 
by  her  exclusi'on  from  the  car,  tliere  had  been 
a  recurrence  of  insomnia  and  of  these  parox- 
ysms. The  court  instructed  the  jury  that,  if 
they  found  for  the  plaintiffs,  "in  assessing 
damages,  if  it  appears  from  the  evidence  that 
the  plaintiff  Annie  L.  Sloane  was  wrongfully 
deprived  of  her  right  to  ride  on  defendant's 
cars,  and  expelled  therefrom  in  a  manner  and 
under  circumstances  calculated  to  inflict,  and 
which  did  inflict,  feelings  of  indignity  and  in- 
sult, the  jury  is  authorized  to  consider,  under 
the  evidence,  the  injured  feelings  of  the  plain- 
tiff, the  indignity  endured,  her  mental  suffer- 
ing, the  humiliation  and  wounded  pride  which 
one  in  her  condition  of  life  and  standing  in 
the  community  would  experience,  together 
with  any  bodily  harm  or  suffering  occasioned, 
and  to  award  such  an  amount  for  damages  as 
will  compensate  her  for  such  humiliation,  suf- 
fering, and  other  detriment."  The  jury  were 
not  specially  instructed  with  reference  to  any 
damages  that  might  have  been  sustained  by 
reason  of  the  recurrence  of  this  disturbance  of 
the  ueiwous  system,  but  it  is  reasonable  to 
suppose  that  the  above  evidence  was  offered 
by  the  plaintiffs  for  the  puiTpose  of  recovering 
damages  for  the  injury  that  might  be  thus  es- 
tablished, and  that,  under  that  portion  of  the 
above  instruction  in  which  the  jury  were  au- 
thorized in  assessing  damages  to  consider 
"any  bodily  harm  or  suffering  occasioned"  by 
the  expulsion  of  Mrs.  Sloane  from  the  cars,  it 
was  intended  that  they  should  consider  this 
evidence,  and  the  injury  which  it  established. 
The  defendant  objected  to  the  inti-oduction  of 
the  evidence,  and  excepted  to  the  instruction, 
and  insists  that  under  no  circumstances  could 
the  jury  consider  this  ett"ect  upon  the  plaintiff 
as  an  element  of  damage  for  which  the  defend- 
ant is  liable;  that  the  court  should  not  have 
directed  the  jury  to  consider  any  mental  suf- 
fering experienced  by  her. 

Counsel  for  the  appellant  has  discussed,  in 
his  brief,  the  want  of  liability  on  the  part  of 
the  defendant  for  any  damages  for  mental  suf- 
fering, and  has  cited  many  authorities  in  sup- 
port of  the  proposition  that  mere  mental  anx- 
iety, unaccompanied  with  bodily  injury  or  ap- 
prehended peril,  does  not  afford  a  right  of  ac- 
tion. To  the  extent  that  the  term  '"mental 
suffering"  is  included  in  the  above  instruction. 


this  proposition  is  inapplicable.  The  term,  as 
there  u.sed,  is  to  be  construed  with  reference 
to  the  context  in  which  it  occurs.  The  '"men- 
tal suffering,"  there  named,  is  not  the  men- 
tal anguish  or  pain  referred  to  in  the  above 
proposition  cited  by  the  appellant,  but  is  the 
mental  experience  which  is  concomitant  with 
the  insult,  indignity,  and  hiuniliation  named 
in  the  instruction.  It  would  be  a  contradic- 
tion of  terms  to  hold  that  the  individual  whose 
pride  had  been  humiliated,  or  whose  dignity 
had  been  insulted,  had  no  mental  suffering  in 
connection  therewith,  or  that  this  humiliation 
and  insult  did  not  of  themselves  constitute 
mental  suffering;  that  he  could  have  redress 
for  the  injured  pride,  but  not  for  the  mental, 
suffering  it  produced.  Although  mental  suf- 
fering alone  will  not  support  an  action,  yet  it 
constitutes  an  aggravation  of  damages  when 
it  naturally  ensues  from  the  act  complained 
of.     3  Suth.  Dam.  §  12 45. 

The  real  question  presented  by  the  objec- 
tions and  exception  of  the  appellant  is  wheth- 
er the  subsequent  nervous  disturbance  of  the 
plaintiff  was  a  suft"ering  of  the  body  or  of  the 
mind.  The  interdependence  of  the  mind  and 
body  is  in  many  respects  so  close  that  it  is  im- 
possible to  distinguish  their  respective  influ- 
ence upon  each  other.  It  must  be  conceded 
that  a  nervous  shock  or  paroxysm,  or  a  dis- 
turbance of  the  nervous  system,  is  distinct 
from  mental  anguish,  and  falls  within  the 
physiological,  rather  than  the  psychological, 
branch  of  the  human  organism.  It  is  a  matter 
of  general  knowledge  that  an  attack  of  sud- 
den fright,  or  an  exposure  to  imminent  peril, 
has  produced  in  individuals  a  complete  change 
in  their  nervous  system,  and  rendered  one  who 
was  physically  strong  and  vigorous  weak  and 
timid.  Such  a  result  must  be  regarded  as  an 
injury  to  the  body  rather  than  to  the  mind, 
even  though  the  mind  be  at  the  same  time  in- 
juriously affected.  Whatever  may  be  the  in- 
fluence by  which  the  nervous  system  is  af- 
fected, its  action  under  that  influence  is  entire- 
ly distinct  from  the  mental  process  which  is 
set  in  motion  by  the  brain.  The  nerves  and 
nerve  centers  of  the  body  are  a  part  of  the 
physical  system,  and  are  not  only  susceptible 
of  lesion  from  external  causes,  but  are  also 
liable  to  be  weakened  and  desti-nyed  from 
causes  primarily  acting  upon  the  mind.  If 
these  nerves,  or  the  entire  nervous  system,  are 
thus  affected,  there  is  a  physical  injury  there- 
by produced;  and,  if  the  primal  cause  of  this 
injury  is  tortious,  it  is  immaterial  whether  it 
is  direct,  as  by  a  blow,  or  indirect,  through 
some  action  upon  the  mind. 

This  subject  received  a  very  careful  and 
elaborate  consideration  in  the  case  of  Bell  v. 
Railway  Co.,  L.  R.  2G  Ir.  428.  Mrs.  Bell  was 
B.  passenger  upon  one  of  the  defendant's  trains, 
and  by  reason  of  the  defendant's  negligence 
in  the  management  of  its  train  suft'ered  great 
fright,  in  consequence  of  which  her  health 
R'as  seriously  impaired.  She  had  previous.y 
been  a  strong,  healthy  woman,  but  it  was 
shown  that,  after  this  occurrence,  she  suffered 


-i32 


DAMAGES  FOR   PERSONAL   INJURIES. 


from  friiu'lit  and  ner\'ous  shock,  and  was  trou- 
blod  with  iasomnia,  and  that  her  health  was 
seiiously  impaired.  The  jury  were  instructed 
that  if,  in  their  opinion,  .^reat  fright  was  a 
reasonable  and  natural  con.se(iuence  of  the  cir- 
cumstances iu  which  the  defendant  by  its 
neglij,'ence  had  placed  her,  and  that  she  was 
actually  put  in  frij^ht  by  those  circumstances, 
and  if  the  injury  to  her  health  was,  in  their 
opinion,  the  reasonable  and  natural  conscfiuence 
of  such  1,'reat  fright,  and  was  actually  occa- 
sioned thereby,  the  plaintiff  was  entitled  to  re- 
cover damages  for  such  injury.  It  was  object- 
ed to  this  instruction  that,  unless  the  fright 
was  accompanied  by  physical  injury,  eveu 
though  there  might  be  a  uei*vous  shock  occa- 
sioned by  the  fright,  such  damages  woiUd  be 
too  remote.  In  holding  that  this  objection  was 
not  well  founded,  and  that  the  nervous  shock 
was  to  be  considered  as  a  l)Odily  injury,  liie 
coiut  held  that,  if  such  bodily  injury  might  be 
a  natural  consequence  of  fright,  it  was  an  ele- 
ment of  damage  for  which  a  recovery  might 
be  had,  and,  referring  to  the  contention  of  the 
defendant,  said:  "It  is  admitted  that,  as  the 
negligence  caused  fright,  if  the  fright  contem- 
poraneously caused  physical  injury,  the  dam- 
age would  not  be  too  remote.  The  distinction 
insisted  upon  is  one  of  time  only.  The  propo- 
sition is  that,  although,  if  an  act  of  negligence 
produces  such  an  effect  upon  particular  struc- 
tures of  the  body  as  at  the  moment  to  afford 
palpable  evidence  of  physical  injury,  the  rela- 
tion of  proximate  cause  and  effect  exists  be- 
tween such  negligence  and  the  injuiy,  yet  such 
relation  cannot  in  law  exist  in  the  ease  of  a 
similar  act  producing  upon  the  same  struc- 
tures an  effect  vvmch  at  a  subsequent  time- 
say  a  week,  a  fortnight,  or  a  month — must  re- 
sult without  any  intervening  cause  in  the  same 
physical  injury.  As  well  might  it  be  said  that 
a  death  caused  by  poison  is  not  to  be  attribut- 
ed to  the  person  who  administered  it,  because 
the  mortal  effect  is  not  produced  contempora- 
neously with  its  administration."  At  the  close 
of  its  opinion,  Lord  Chief  Baron  Palles  says: 
"In  conclusion,  I  am  of  the  opinion  that,  as  tlie 
relation  between  fright  and  injury  to  the  nerve 
and  brain  structures  of  the  body  is  a  matter 
which  depends  entirely  upon  scientitic  and 
medical  testimony,  it  is  impo.ssible  for  any 
court  to  lay  down  as  a  matter  of  law  that,  if 
negligence  cause  fright,  and  such  fright  in  its 
turn  so  affect  such  structures  as  to  cause  in- 
jury to  Ilea  1th,  such  injury  cannot  be  a  conse- 
ipieuce  wliich,  in  the  ordinary  course  of  things, 
would  tlow  from  the  negligence,  unless  such 
injury  accompanied  such  negligence  in  point 
of  time."  This  case  is  quoted  at  great  length 
and  with  api)roval  in  the  eighth  edition  of  Mr. 
Sedgwick's  treatise  on  Damages,  at  section 
860.  Mr.  Beveu,  in  the  recent  edition  of  his 
work  on  Negligence  (volume  1,  pp.  77-81),  also 
comments  upon  it  with  great  approval.  In 
rurcell  V.  Railroad  Co.,  48  Mum.  134,  50  N.  W. 
1034,  the  defendant  so  negligently  managed 
one  of  its  cars  that  a  collision  with  an  ap- 
proaching   cable   car   seemed    imminent,    and 


was  so  nearly  caused  that  the  attendant  con 
fusion  of  ringing  alarm  bells  and  of  passengers 
rushing  out  produced  in  the  plaintiff",  who  wa.- 
a  passenger  on  the  car,  a  sudden  fright,  which 
threw  her  into  convulsions,  and,  she  t)elng 
then  pregnant,  caused  in  her  a  miscarriage, 
and  subsequent  illness.  The  court  held  that 
the  defendant's  negligence  was  the  proximate 
cause  of  the  plaintiff's  injuiy,  and  that  it  was 
liable  therefor,  oven  though  the  immediate  re- 
sult of  the  negligence  was  only  fright,  say- 
ing: "A  mental  shock  or  disturbance  some- 
times causes  injury  or  illness  of  body,  es 
pecially  of  the  nervous  system."  See,  also. 
Canning  v.  Inhabitants  of  Wiiliamstown,  1 
Cush.  4.51;  Seger  v.  Town  of  Barkhamsted. 
22  Conn.  290;  Car  Co.  v.  Dupre,  4  C.  C.  A 
540,  54  Fed.  646;  Stutz  v.  Railroad'  Co.,  73 
Wis.  147,  40  N.  W.  6.53;  Razzo  v.  Varni,  81 
Cal.  280,  22  Pac.  848.  "It  is  a  physical  in- 
jury to  the  person  to  be  thrown  out'  of  a 
wagon,  or  to  be  compelled  to  jump  out,  even 
though  the  harm  done  consists  mainly  of 
nervous  shock."  Wan-en  v.  Railroad  Co.,  K;.*. 
Mass.   4S4,  40  N.   E.   895. 

The  meutal  condition  which  superinduced 
the  bodily  harm  iu  the  foregoing  cases  was 
fright,  but  the  character  of  the  mental  exci 
tation  by  wliich  the  injuiy  to  the  body  is  pro 
duced  is  immaterial.  If  it  can  be  established 
that  the  bodily  harm  is  the  direct  result  of  the 
condition,  v/ithout  any  intervening  cause,  it 
must  be  held  that  the  act  which  caused  the 
condition  set  in  motion  the  agencies  by  which 
the  injury  was  produced,  and  is  the  proximate 
cause  of  such  injury.  Whether  the  indignity 
and  humiliation  suft'ered  by  Mrs.  Sloane  caus- 
ed the  nervous  paroxysm,  and  the  injury  to 
her  health  from  which  she  subsequently  suf- 
fered, was  a  question  of  fact,  to  be  determined 
by  the  jury.  There  was  evidence  before  them 
tending  to  establish  such  fact,  and  if  they  were 
satistied,  from  that  evidence,  that  these  results 
were  directly  traceable  to  that  cause,  and  that 
her  expulsion  from  the  car  had  produced  iu 
her  such  a  disturbance  of  her  nervous  system 
as  resulted  in  these  paroxysms,  they  were  au- 
thorized to  include  in  their  verdict  whatever 
damage  she  had  thus  sustained.  Whether 
the  defendant  or  its  agents  knew  of  her  sus- 
ceptibilit.v  to  nervous  disturbance  was  imma- 
terial. She  had  the  same  rights  as  any  other 
person  who  might  become  a  passenger  on  its 
road,  and  was  entitled  to  as  high  degree  of 
care  on  its  part.  It  was  not  necessary  that  this 
injury  should  have  been  anticipated  in  order 
to  entitle  her  to  a  recovery  therefor.  Civ. 
Code,  §  ;i3;53.  If  the  facts  uuder  which  she 
was  excluded  from  the  car  would  be  an  act  of 
negligence  on  the  part  of  the  defendant  as  to 
any  and  all  persons,  whoever  might  sustain 
injury  by  such  act  would  be  entitled  to  recover 
to  the  full  extent  of  his  injury,  irrespective  of 
his  previous  physical  condition  or  susceptibili- 
ty to  harm.  In  Railroad  Co.  v.  Kemp,  61  Md. 
74,  619,  the  plaintiff"  was  injured  upon  a  car 
of  the  defendant,  and  thereafter  a  cancer  de- 
veloped  itself    upon  her   breast   at  the   place 


DAMAGES  FOR   PEltSON,U^   INJURIES. 


433 


where  she  had  been  hurt.  Testimony  was  giv-  ! 
en  to  the  effect  that  such  hurt  was  sutticient 
to  cause  the  development  of  the  cancer,  and 
that,  in  the  opinion  of  the  experts,  they  would 
attribute  it  to  that  cause.  It  was  shown  that, 
previous  to  the  accident  she  had  been  in  ap- 
parently good  health  and  condition.  The  court 
held  that  it  was  for  the  jury  to  determine, 
from  the  evidence,  whether  the  cancer  did  re- 
sult fi-om  the  injury,  and,  if  so,  that  the  de- 
fendant was  liable,  even  though  it  had  no  rea- 
son to  anticipate  such  a  result.  "It  is  not  for 
the  defendants  to  say  that,  because  they  did 
not  or  could  not  in  fact  anticipate  such  a  re- 
sult of  their  negligent  act,  they  must  there- 
fore be  exonerated  from  liability  for  such  con- 
sequences as  ensued.  They  must  be  taken 
to  know  and  to  contemplate  all  the  natural 
and  proximate  consequences,  not  only  that 
certainly  would,  but  that  probably  might,  flow 
from  their  wrongful  act."  See,  also,  Fell  v. 
Railroad  Co.,  44  Fed.  253. 

The  court  properly  left  to  the  jury  to  de- 
termine whether  Mrs.  Sloane  exercised  rea- 
sonable prudence  in  undertaking  the  walk 
from  East  Riverside  to  Colton.  and.  If  so,  that 
the  injury  sustained  by  her  was  a  proper  ele- 
ment of  damage  to  be  recovered.  It  could  not 
say,  as  matter  of  law,  or  instruct  the  jury, 
that  under  the  evidence  before  them,  such 
walk  was  or  was  not  necessary,  or  whether 
the  route  selected  by  her  was  the  most  feasi- 
ble; nor  would  it  have  been  justified  in  direct- 
ing them  not  to  allow  compensation  for  any 
injury  sustained  by  the  walk,  upon  the 
ground  that,  if  she  had  waited  a  few  houi-s, 
she  could  have  gone  upon  the  cars.  Maloue  v. 
Railroad  Co.,  152  Pa.  St.  390,  25  Atl.  638. 

The  refusal  of  the  court  to  strike  out  cer- 
tain portions  of  the  complaint  as  irrelevant  is 
not  a  ground  for  reversal  of  the  judgment. 
The  matter  embraced  therein  was  relevant 
to  the  plaintiffs'  right  of  recovery,  and  they 
were  justified  in  setting  forth  in  their  com- 
plaint the  several  acts  of  the  defendant  which 
constituted  the  wrong  for  which  they  sought 
redress.  The  defendant  does  not  claim  to  have 
been  prejudiced  by  any  of  the  probative  mat- 
ters contained  in  these  allegations,  and,  even 
if  this  matter  might  have  been  properly  struck 
out  by  the  court,  after  the  cause  has  been 
tx'ied  upon  its  merits  the  judgment  will  not 
be  reversed  for  such  technical  errou. 

The  demurrer  to  the  complaint  was  proper- 
ly overruled.  The  cause  of  action  set  forth 
therein  is  neither  ambiguous  nor  uncertain. 
It  clearly  states  a  single  ground  of  recovery, 
viz.  the  unlawful  violation  by  the  defendant 
of  the  obligation  it  had  assumed  to  carry 
Mrs.  Sloane  to  San  Diego;  and,  although 
the  damages  caused  to  her  by  this  violation  of 
its  obligation  were  made  up  of  the  injuries 
to  her  person,  as  well  as  the  money  paid  by 
her  as  the  consideration  of  this  obligation, 
they  all  resulted  from  the  wrong  committed 
by  the  defendant.  It  was  necessary  that  she 
should  point  out  the  particulars  in  which  she 
had  sustained  injiuies  from  the  defendant,— 
LAW  DAM.2d  Ed.— 28 


the  humiliation,  injuries  to  her  health,  etc.,— 
in  order  that  evidence  thereof  might  be  given 
at  the  trial,  and  also  that  the  defendant  migiu 
be  prepared  to  meet  such  evidence;  but  it  was 
not  necessary  that  she  should  designate  tlio 
jjarticular  amount  of  damage  which  she  had 
sustained  by  reason  of  the  indignity  that  she 
had  been  compelled  to  undergo,  distinct  from 
the  amount  sustained  from  the  injury  to 
her  health.  These  elements  of  damage  were 
not  capable  of  computation,  nor  would  evi- 
dence of  such  amount  have  been  admissible. 
This  amount  was  to  be  determined  by  the 
jury,  in  the  exercise  of  an  intelligent  discre- 
tion. 

Neither  does  the  action  of  the  court  in 
striking  out  a  portion  of  the  defendant's  an- 
swer  justify  a  reversal  of  the  judgment 
The  denial  of  an  allegation  in  the  com- 
plaint for  want  of  sufficient  information  and 
belief  to  enable  the  defendant  to  answer 
the  same  justifies  the  court  in  disregarding 
or  striking  out  such  denial,  if  the  matter  is 
presumptively  within  the  knowledge  of  the 
defendant;  and,  although  a  corporation  does 
not  itself  have  any  knowledge  of  the  matters 
alleged,  but  is  compelled  to  act  through  its 
officers,  whose  information  may  be  derived 
from  others,  yet  it  cannot  place  its  denials 
upon  its  want  of  information  and  belief,  if 
the  mattei-s  alleged  were  presumptively  with- 
in the  knowledge  of  any  of  its  oflicers,  even 
though  the  officer  verifying  the  answer  was 
himself  without  any  information  or  belief  up- 
on the  subject.  In  the  present  case  it,  more- 
over, clearly  appears  that  the  defendant  was 
not  prejudiced  by  the  action  of  the  court.  In 
a  separate  defense  to  the  action,  the  defend- 
ant difectly  alleged  many  of  the  facts  which, 
in  the  portion  of  the  answer  thus  struck  out, 
it  had  denied  for  want  of  information  and 
belief;  and,  although  an  admission  in  one 
defense  is  not  available  as  against  a  denial 
in  another,  it  is  competent  for  the  court  to 
consider  such  admission  for  the  puriwse  of 
determining  whether  the  answer  containing 
the  denial  is  sham  or  evasive.  After  the  rul- 
ing of  the  court,  the  defendant  amended  its 
answer  by  directly  denying  the  matters  al- 
leged in  one  of  the  paragraphs  which  the 
court  held  had  been  insufficiently  denied,  and 
at  the  trial  it  stipulated  to  the  truth  of  the 
matters  that  had  been  denied  by  it  in  anoth- 
er of  the  paragraphs  which  was  stricken  out 
The  defendant  was,  therefore,  not  precluded 
from  defending  the  action  in  any  particular 
upon  which  it  relied.  After  a  cause  has 
been  tried  upon  its  merits,  a  ruling  of  the 
court  either  in  strikiuj,  out,  or  in  refusing 
to  strike  out,  a  portion  of  a  pleading,  will  not 
justify  a  reversal  of  the  judgment,  if  it  ap- 
pears that  the  party  against  whom  the  ruling 
was  made  has  not  been  prejudiced  thereby, 
and  has  been  able  to  present  to  the  court  his 
entire  cause  of  action  or  defense.  Mere  tech- 
nical error,  unaccompanied  by  injury,  will 
be  disregarded.  Code  Civ.  Proc.  §  475. 
The  court  did  not  err  in  its  instructions  to 


434 


DAMAGES   FOR   PERSONAL   INJURIES. 


the  jury  respecting  the  measure  of  care 
which  a  raihoad  company  must  exercise  to- 
wards its  passengers.  Rorer,  ti.  R.  p.  951; 
Railroad  Co.  v.  Homer,  73  Ga.  251.  The  pas- 
senger is  not  reciuired  to  question  the  action 
of  the  conductor  in  taking  up  hif  ticket, 
hut  lias  to  assume  that  hirj  conduct  in  tak- 
ing or  withholding  the  ticket  is  in  accord- 
ance with  the  rules  of  the  company.  It  is 
therefore  incumbent  upon  the  conductor  to 
exercise  more  than  ordinary  care  in  seeing 
that,  after  he  has  taken  the  ticket  from  the 
passenger,  the  latter  shall  be  provided  with 
the  means  of  continuing  his  journey.  It  is 
not  error  to  hold  that  this  requires  extreme 
care  and  diligence.  We  are  of  the  opin- 
ion, however,  that  the  damages  allowed  by 
the  jury  were  excessive,  and  not  jf stifled 
by  the  evidence.  They  were  properly  told 
that  they  could  not  award  the  plaintiff  ex- 
emplary damages,  but  only  such  as  would 
be  a  full  and  fair  compensation  to  her  for 
the  injury  and  detriment  she  had  suffered 
as  the  proximate  results  of  the  defendant's 
wrongful  acts.  The  testimony  tending  to 
show  that  the  conductor  was  rude  and  in- 
sulting in  directing  her  to  leave  the  train  at 
East  Riverside  is  quite  meager,  and  consists 
more  of  her  statement  of  its  character  than 
of  the  language  used  by  him.  The  jui-y  were 
instructed  that,  in  estimating  the  amount  of 
damages  she  could  recover  by  reason  of  the 
humiliation  in  being  excluded  from  the  car, 
they  were  not  at  liberty  to  consider  her 
peculiar  nervous  temperament,  but  to  allow 
only  such  damages  as  would  have  resulted 
to  a  pei-son  of  ordinary  or  usual  tempei-a- 
ment.  So,  too,  the  evidence  concerning  the 
effect  of  this  expulsion  from  the  car  upon 
her  nei-vous  condition  consists  more  of  gen- 
eral statements  than  of  details,  and  it  does 
not  appear  that  this  effect  was  of  more  than 


brief  dui-ation.  She  does  not  claim  to  have 
sustained  any  direct  physical  injury  by  rea- 
son of  the  walk  to  Colton.  She  testifies,  as 
do  also  her  husband  and  Dr.  Averill,  that, 
excei)t  for  her  nervous  condition,  she  was 
in  fair  health,  and  that  she  was  abundantly 
able  to  take  a  walk  of  two  or  three  miles-, 
and  it  is  not  suggested  that  the  walk  had 
any  effect  upon  her  nen'ous  condition,  or 
that  she  suffered  any  direct  inconvenience 
therefrom  after  her  return  toSanDiogo.  The 
walk  itself  was  not  attended  with  any  un- 
usual inconvenience.  It  was  upon  the  rail- 
road track,  in  a  level  country,  on  an  after- 
noon in  April.  The  distance  is  not  .-jiven, 
but,  after  going  about  a  mile,  or  as  far  as 
the  railroad  bridge,  she  was  taken  into  a 
passing  vehicle,  and  carried  to  Colton. 
While  the  amount  of  damages  that  may  be 
awarded  in  a  case  like  the  present  is  in  the 
discretion  of  the  jm-y,  it  must  be  a  reasonable 
and  not  an  unlimited,  discretion,  and  must 
be  exercised  intelligently  and  in  harmony 
with  the  testimony  before  them.  We  think 
that  the  jury  in  the  present  case  must  have 
been  influenced  by  other  ccmsiderations  than 
the  testimony  before  them  in  arriving  at  the 
amount  of  their  verdict. 

The  judgment  and  order  denying  a  new 
trial  are  reversed,  unless  the  plaintiffs  shall, 
within  30  days  after  the  filing  of  the  remit- 
titur in  the  superior  court,  file  with  the  clerk 
and  give  to  the  defendant  a  stipulation  re- 
milting  from  the  judgment  the  sum  of  $1,000. 
If  such  stipulation  be  so  filed  and  delivered, 
the  superior  court  is  directed  to  amend  the 
judgment  in  conformity  therewith,  and  there- 
upon the  judgment  and  order  shall  stand  af- 
firmed. 


We  concur;  VAN  FLEET,  J.;  GABOUTTE, 


J. 


DAMAGES  FOR   PERSONAL   INJURIES. 


435 


MITCHELL  V.  ROCHESTER  RY.   CO. 

(45  N.  E.  354,  151  N.  Y.  107.) 

Court  of  Appeals  of  New  York.     Dec.  1,  1S9C>. 

Appeal  rrom  supreme  court,  general  term, 
FJftli  department. 

Action  by  Annie  Mitchell  against  the  Rocn- 
ester  Railway  Company.  From  an  order  (28 
N.  Y.  Supp.  1136)  affirming  an  order  (25  N. 
Y.  Supp.  744)  setting  aside  a  nonsuit,  defeud- 
iiwt  appeals.    Reversed. 

Charles  J.  Bissell,  for  appellant,  Norris 
Bull,  for  respondent. 

MARTIN,  ,T.  The  facts  In  this  case  are 
few,  and  may  be  briefly  stated.  On  the  1st 
day  of  April,  1891,  the  plaintiff  was  standing 
upon  a  crosswalk  on  Main  street,  in  the  city 
of  Rochester,  aw^aiting  au  opportunity  to 
board  one  of  the  defendant's  cars  which  had 
stopped  upon  the  street  at  that  place.  While 
standing  there,  and  just  as  she  was  about  to 
step  upon  the  car,  a  horse  car  of  the  defend- 
ant came  down  tlie  street.  As  the  team  at- 
tached to  the  car  drew  near,  it  turned  to  the 
right,  and  came  close  to  the  plaintiff,  so  that 
she  stood  between  the  horses'  heads  when 
they  were  stopped.  She  testified  that  from 
fright  and  excitement  caused  by  the  approach 
aud  proximity  of  the  team  she  became  un- 
conscious, and  also  that  the  result  was  a  mis- 
carriage, and  consequent  illness.  Medical 
testimony  was  given  to  the  effect  that  the 
mental  shock  which  she  then  received  was 
.sufficient  to  produce  that  result.  Assuming 
that  the  evidence  tended  to  show  that  the  de- 
fendant's servant  w^as  negligent  in  the  man- 
agement of  the  car  aud  horses,  and  that  the 
plaintiff  was  free  from  contributory  negli- 
gence, the  single  question  presented  is  wheth- 
er the  plaintiff  is  entitled  to  recover  for  the 
defendant's  negligence  which  occasioned  her 
fi-ight  aud  alarm,  and  resulted  in  the  injuries 
already  mentioned.  ^Yhile  the  authorities  are 
not  harmonious  upon  this  question,  we  think 
the  most  reliable  aud  better-considered  cases, 
as  well  as  public  policy,  fully  justify  us  in 
holding  that  the  plaintiff  cannot  recover  for 
injuries  occasioned  by  fright,  as  there  was 
no  immediate  personal  injury.  Lehman  v. 
Railroad  Co.,  47  Hun,  3.55;  Commissioners  v. 
Coultas,  13  App.  Cas.  222;  Ewing  v.  Railway 
Co.,  147  Pa.  St.  40,  23  Atl.  340.  The  learned 
counsel  for  the  respondent  in  his  brief  very 
properly  stated  that  "the  consensus  of  opin- 
ion would  seem  to  be  that  no  recovery  can  be 
had  for  mere  fright,"  as  will  be  readily  seen 
by  an  examination  of  the  following  additional 
authorities:  Haile  v.  Railroad  Co.,  60  Fed. 
557;  Joch  v.  Dankwardt,  85  111.  331;  Can- 
ning V.  Inhabitants  of  WiUiamstown,  1  Cush. 
451;  Telegraph  Co.  v.  Wood,  G  C.  C.  A.  432, 
57  Fed.  471;  Renner  v,  Canfleld,  36  Minn.  90, 
30  N.  W.  435;  Allsop  v.  Allsop,  5  Hurl.  &  N. 


5.34;  Johnson  v.  Wells,  Fargo  &  Co.,  6  Nev. 
224;  Wyman  v.  Leavitt,  71  Me.  227.  If  it  be 
admitted  that  no  recovery  can  be  had  for 
fright  occasioned  by  the  negligence  of  an- 
other, it  is  somewhat  difficult  to  understand 
how  a  defendant  would  be  liable  for  its  con- 
sequences. Assuming  that  fright  cannot 
form  the  basis  of  an  action,  it  is  obvious  that 
no  recovery  can  be  had  for  injuries  resulting 
therefrom.  That  the  result  may  be  nervous 
disease,  blindness,  insanity,  or  even  a  mis- 
carriage, in  no  W'ay  changes  the  principle. 
These  results  merely  show^  the  degree  of 
fright,  or  the  extent  of  the  damages.  The 
right  of  action  must  still  depend  upon  the 
question  whether  a  recovery  may  be  had  for 
fright.  If  it  can,  then  an  action  may  be  main- 
tained, however  slight  the  injury.  If  not, 
then  there  can  be  no  recovery,  no  matter  how 
grave  or  serious  the  consequences.  Therefore 
the  logical  result  of  the  respondent's  conces- 
sion -would  seem  to  be,  not  only  that  no  re- 
covery can  be  had  for  mere  fright,  but  also 
that  none  can  be  had  for  injuries  which  are 
the  direct  consequences  of  it.  If  the  right  of 
recovery  in  this  class  of  cases  should  be  once 
established,  it  would  naturally  result  in  a 
flood  of  litigation  iu  cases  where  the  injury 
complained  of  may  be  easily  feigned  without 
detection,  and  where  the  damages  must  rest 
upon  mere  conjecture  or  speculation.  The 
difficulty  Avhich  often  exists  in  cases  of  al- 
leged physical  injury,  in  determiniug  whether 
they  exist,  and,  if  so,  whether  they  were 
caused  by  the  negligent  act  of  the  defendant, 
would  not  only  be  greatly  increased,  but  a 
wide  field  would  be  opened  for  fictitious  or 
speculative  claims.  To  establish  such  a  doc- 
trine would  be  contrary  to  principles  of  pub- 
lic policy.  Moreover,  it  cannot  be  properly 
said  that  the  plaintiff's  miscarriage  was  the 
proximate  result  of  the  defendant's  negli- 
gence. Proximate  damages  are  such  as  are 
the  ordinary  aud  natural  results  of  the  neg- 
ligence charged,  and  those  that  are  usual, 
and  may,  therefore,  be  expected.  It  is  quite 
obvious  that  the  plaintift''s  injuries  do  not 
fall  withiu  the  rule  as  to  proximate  damages. 
The  injuries  to  the  plaintiff  were  plainly  the 
result  of  an  accidental  or  unusual  combina- 
tion of  circumstances,  which  could  not  have 
been  reasonably  anticipated,  and  over  which 
the  defendant  had  no  control,  and  hence  her 
damages  were  too  remote  to  justify  a  re- 
covery in  this  action.  These  considerations 
lead  to  the  conclusion  that  no  recovery  can 
be  had  for  injuries  sustained  by  fright  occa- 
sioned by  the  negligence  of  another,  where 
there  is  no  immediate  personal  injury.  The 
orders  of  the  general  and  special  terms  should 
be  reversed,  and  the  order  of  the  trial  term 
granting  a  nonsuit  affirmed,  with  costs.  All 
concur,  except  HAIGHT.  J.,  not  sitting,  and 
VANN,  J.,  not  voting.    Ordered  accordiugly. 


436 


DAMAGES  FOR   PERSONAL   INJURIES. 


TURNER   V.  GREAT   NORTHERN   RY.    CO. 

(46  Fat:  243,  15  Wash.   213.) 
Supreme  Court  of  Washingtou.    Aug.  31.  1S96. 

Appeal  from  superior  court,  Spokane  coun- 
ty; .losse  Arthur,  .Judge. 

Action  by  W.  W.  D.  Turner  against  the 
Great  Nortliern  Railway  Company.  There 
was  a  judgment  for  plaintiff,  and  defendant 
appeals.    Reversed. 

C.  Wellington.  .Tay  H.  Adams,  and  M.  D. 
Grover.  for  appellant.  Graves  &  Wolf,  for 
respondent. 

ANDERS,  J.  This  was  an  action  for  dam- 
ages for  the  failure  on  the  part  of  the  defend- 
ant to  transport  the  plaintiff  and  his  wife 
over  its  line  of  railway  from  St.  Paul,  Minn., 
to  the  city  of  Spokane,  in  accordance  with  its 
agreement  and  duty.  The  material  facts  set 
forth  in  the  complaint  are,  briefly,  that  the 
defendant  is,  and  at  all  the  times  mentioned  in 
the  complaint  was.  a  corporation  operating  a 
line  of  railway  from  St.  Paul  to  Seattle  by  way 
of  the  city  of  Spokane;  that  on  May  30,  1894, 
the  plaintiff  purchased  from  the  agent  of  de- 
fendant at  St.  Paul  tickets  for  himself  and 
wife,  and  proctu'ed  checks  for  their  baggage, 
over  defendant's  railway  from  St.  Paul  to 
Spokane,  and  was  induced  so  to  do  by  the 
representation  of  said  agent  that  defendant's 
passenger  train  which  wovild  leave  St.  Paul 
on  the  said  day  would  reach  the  city  of 
Spokane  on  the  morning  of  the  2d  day  of  .June 
following,  and  that  the  tickets  purchased 
from  the  defendant's  agent  were  limited  to 
that  time  and  train;  that  defendant  then  well 
knew  that  it  had  not  been  able  to  run  a 
through  train  from  St.  Paul  to  Spokane  for 
several  days  prior  to  that  time,  and  that,  ow- 
ing to  a  serious  break  in  its  roadbed  west  of 
Havre,  it  would  not  be  able  to  run  such 
through  train  for  a  long  time  thereafter, 
Avhich  fact  it  negligently  and  fraudulently 
concealed  from  the  plaintiff;  that  plaintiff' 
and  his  wife  took  passage  on  defendant's  pas- 
senger train  which  left  St.  Paul  on  the  even- 
ing of  May  30,  1894.  and  when  said  train 
reached  Havre  the  conductor  thereof  inform- 
ed the  plaintiff  that,  because  of  some  damage 
to  defendant's  road  further  west,  in  the  slate 
of  Idaho,  the  train  would  proceed  no  further, 
but  that  the  plaintiff  and  his  wife  would  be 
taken  on  defendant's  line  of  railway  to 
Ilc'lona,  Mont.,  from  which  place  they  would 
be  carried  to  their  destination"  over  the  line 
of  the  Northern  Pacific  Railroad  Company, 
and  that  the  tickets  then  held  by  plaintiff' 
were  good,  and  would  be  honored  for  trans- 
portation over  that  road;  that  plaintiff  ar- 
rived at  Helena  on  June  1st,  and  on  the  fol- 
lowing day  boarded  the  first  west-bound 
Northern  Pacific  train,  and  presented  his  tick- 
i'ts  to  the  conductor,  who  refused  to  accept 
them  for  transportation,  and  required  the 
plaintiff"  to  pay  the  fare  for  himself  and  wife 
to  Missoula,-  tliat  being  the  end  of  the  con- 


ductor's division;  that,  owing  to  serious  dam- 
age to  that  road,  caused  by  high  water,  plain- 
tiff could  proceed  no  further,  and  was  com- 
pelled to  remain  in  Missoula  from  the  2d  to 
the  20th  day  of  June;  that  on  said  last-men- 
tioned day  plaintiff  paid  the  fare  demanded 
for  transportation  to  his  home  at  Spokane, 
which  place  he  reached  on  the  21st  day  of 
Juiu>,  having  been  delayed  over  night  at  Hope, 
Idaho;  and  that  the  expense  necessarily  in- 
curred for  extra  railroad  fare  and  for  board 
and  lodging  during  the  delays  at  Helena,  Mis- 
soula, and  Hope  was  !fiS0.20.  It  is  averred  in 
the  complaint  that:  "During  their  detention 
and  delay  plaintiff"s  said  wife,  in  consequence 
of  said  delay  and  her  anxiety  of  mind  as  to 
their  situation,  became  sick  at  said  city  of 
Missoula,  and  was  confined  to  her  bed  for 
several  days,  and  plaintiff'  was  much  wor- 
ried, vexed,  and  annoyed  because  of  his  ina- 
bility to  make  his  wife  comfortable,  situated, 
as  they  were,  at  an  hotel,  among  strangers,  far 
from  home,  and  without  access  to  their  bag- 
gage; that  because  of  said  detention  and  de- 
lay, and  of  his  inability  to  reach  his  said 
home,  plaintiff  was  greatly  harassed,  troubled, 
and  perplexed  about  his  business,  and  it  other- 
wise caused  him  great  annoyance,  vexation, 
and  anxiety  of  mind  because  of  his  embar- 
rassed situation,  the  uncertainty  when  they 
would  reach  their  home,  and  the  great  dangers 
incident  to  traveling  at  that  time;  *  *  * 
that,  in  addition  to  said  extra  expense  made 
necessary,  as  aforesaid,  because  of  defend- 
ant's negligent  and  fraudulent  conduct  in  the 
premises,  and  of  plaintiff's  delay  and  deten- 
tion, as  aforesaid,  and  consequent  loss  of 
time,  worriment,  trouble,  annoyance,  and 
anxiety  of  mind,  as  aforesaid,  he  has  been 
damaged  in  the  further  sum  of  .^1,000."  The 
plaintiff  accordingly  demanded  judgment 
against  the  defendant  for  $1,080.20.  The  de- 
fendant moved  the  court  to  require  the  plain- 
tiff to  furnish  a  bill  of  particulars  showing 
the  respective  amounts  claimed  for  loss  of 
time,  trouble,  annoyance,  disappointment,  and 
anxiety  of  mind,  which  motion  was  denied. 
The  defendant  then  answered,  denying  all  the 
allegations  of  the  complaint  except  that  re- 
lating to  the  incorporation  and  business  of 
the  defendant,  and  that  the  plaintiff  pur- 
chased the  tickets  mentioned  in  the  complaint. 
From  a  judgment  in  favor  of  the  plaintiff'  for 
the  sum  of  .$750,  this  appeal  is  prosecuted. 

It  is  claimed  by  defendant  that  it  had  a 
right,  under  section  205  of  the  Code  of  Pro- 
cedure, to  be  advised,  in  advance,  of  how 
much  plaintiff"  sought  to  recover  for  loss  of 
time,  how  much  for  anxiety  of  miud,  etc., 
that  it  might  be  prepared  with  its  proofs  to 
meet  the  allegations  of  the  complaint,  and 
that,  if  the  allegations  as  to  loss  of  time, 
trouble,  annoyance,  and  disappointment  of 
mind  authorized  the  introduction  of  any  proof, 
the  damages  were  special,  and  the  defendant 
was  entitled  to  a  statement  of  the  particular 
itenis.  It  has  been  repeatedly  held  in  New 
York,  under  a  statute  like  ours,  and  seems  to 


DAMAGES   FOH   I'EHSOXAL   INJUKIES. 


437 


l)e  the  settled  rule,  that  the  granting  or  re- 
fusing of  a  motion  for  a  bill  of  particulars  is 
within  the  sound  discretion  of  the  trial  coiul, 
and  its  ruling  in  that  regard  will  not  be  re- 
viewed on  appeal,  except  in  cases  where  there 
has  been  a  palpable  abuse  of  such  discretion. 
Tiltou  V.  Beecher,  59  N.  Y.  17G;  People  v. 
Tweed,  G3  N.  Y.  194;  D wight  v.  Insurance 
Co.,  84  N.  Y'.  493.  No  such  case,  we  appre- 
hend, is  presented  here.  The  object  of  the 
statute  is  to  enable  a  party  reasonably  to 
protect  hinaself  against  surprise  on  the  trial 
(Butler  V.  Mann,  9  Abb.  N.  C.  49) ;  but  we  are 
unable  to  see  how  the  defendant  could  have 
been  surprised  by  the  testimony  adduced  by 
the  plaintiff  corroborative  of  the  averments  of 
the  complaint,  to  which  defendant's  motion 
for  a  bill  of  particulars  was  especially  ad- 
dressed. So  far  as  the  complaint  is  concern- 
ed, its  aUegatious  were  sufficient  to  let  in  the 
evidence  admitted.  The  damages  claimed,  or 
at  least  those  claimed  for  loss  of  time,  were 
general,  and  therefore  were  not  required  to 
be  specifically  alleged.  Thomp.  Carr.  Pass.  p. 
550. 

It  appears  from  the  testimony  of  plaintiff 
that  he  purchased  his  tickets  for  transporta- 
tion at  the  office  of  the  Union  Depot  at  St. 
I'aul,  and  not  at  the  office  of  the  defendant 
company,  and  that  the  person  from  whom 
he  purchased  them  was  engaged  in  selling 
tickets  over  various  other  lines  of  railway 
whose  trains  entered  and  departed  from  that 
depot.  Upon  the  trial  the  court  permitted 
the  plaintiff,  over  the  objection  of  defendant, 
to  detail  a  conversation  between  himself  and 
the  ticket  seller,  which  occurred  at  the  time 
the  plaintiff"  purchased  his  tickets,  in  which 
the  ticket  seller  stated,  among  other  things, 
that  defendant's  trains  were  running 
through  to  Spokane  on  schedule  time,  and, 
if  there  were  no  accidents,  plaintiff  would 
arrive  at  his  destination  on  the  morning  of 
June  2,  1S94.  It  is  contended  that  this  was 
error,  for  the  reason  that  it  was  not  shown 
that  the  person  who  made  these  statements 
was  an  agent  of  the  defendant,  and  author- 
ized to  bind  it  by  such  declarations.  But  the 
fact  that  the  tickets  so  sold  were  furnished 
by  the  railway  company,  and  were  accepted 
as  its  tickets  by  the  conductors  of  its  trains, 
would  seem  to  be  sufficient  proof  that  the 
seller  was  a  ticket  agent  of  the  company, 
and  therefore  clothed  with  the  usual  powers 
of  such  agents.  It  is  generally  the  fact  that 
there  is  no  other  person  than  the  ticket 
agent  at  a  railroad  station  who  can  give  trav- 
elers the  necessary  information  as  to  the  ar- 
ri^  al,  departure,  and  running  time  of  trains, 
and  the  rule,  as  formulated  by  a  learned  text 
writer,  is  that  passengers  have  a  right,  until 
otherwise  informed,  to  rely  on  information 
received  by  them  from  ticket  agents,  in  an- 
swer to  inquiries  concerning  those  matters, 
provided  they  do  not  disregard  other  reason- 
able means  of  information.  3  Wood,  R.  R. 
(Minor's  IM.)  I(i54.  The  testimony  objected 
to  was  certainly  competent  for  the  purpose 


of  showing  that  the  plaintiff  himself  was  not 
in    fault   in   taking  the   particular  train   on 
which  he  started  home.     It  was  also  compe- 
tent  as   tending   to   prove  the   contract   be- 
tween the  parties;    but,  for  that  purpose,  it 
Avas  comparatively  unimportant,  in  view  of 
the  fact  that  the  tickets  themselves,  whicli 
were  prima  facie  evidence  of  the  defendant's 
I   contract,    represented    upon   their   face   that 
1   plaintiff  would  be  carried  to  his  destination 
i    within    the    time    mentioned    by    tlie    ticket 
I   seller. 

I  Objection  is  made  by  the  defendant  to  the 
I  action  of  the  court  in  permitting  the  re- 
I  spondent  to  state  to  the  jury  the  amount  he 
'  was  compelled  to  pay  for  board  and  lodui'i'.,' 
and  other  necessary  expenses  for  himself 
and  wife  Avhile  at  Missoula,  and  it  is  urged 
with  much  earnestness  that  the  expense  in- 
curred at  that  place  was  not  the  result  of  the 
breach  of  defendant's  contract,  but  of  an 
independent,  intervening  cause,  viz.  the  in- 
ability of  the  Northern  Pacific  Railroad  Com- 
pany, upon  whose  line  the  plaintiff  had  be- 
come a  passenger,  seasonably  to  carrj^  him 
to  his  deslination.  The  fact  is,  however, 
that  the  plaintiff"  and  his  wife,  while  at  Mis- 
soula, were  not  passengers  on  the  Northern 
Pacific  Railroad,  and  the  company  operating 
that  road  had  violated  no  contract  with 
them,  or  duty  or  obligation  concerning  them. 
It  carried  them  safely  and  promptly  to  that 
place,  and  thereby  discharged  its  Avhole 
duty.  If  plaintiff  had,  on  arriving  there, 
requested  it  immediately  to  convey  him  to 
Spokane,  the  fact  that  its  road  had  been  so 
damaged  by  floods  and  high  Avater  that  it 
could  not  move  its  trains  would  have  been 
a  legal  excuse  for  a  failure  to  comply  with 
such  request.  The  plaintiff  had  no  right  of 
action  against  the  Northern  Pacific  Railroad 
Company  for  damages  suffered  by  reason  of 
the  delay  at  Missoula,  and  it  therefore  fol- 
lows that,  if  the  defendant  is  not  liable  there- 
for, the  ijlaiutiff  is  without  remedy,  and 
must  suffer  a  loss  occasioned  by  no  fault  on 
his  part.  But  we  do  not  think  that  the  plain- 
tiff is  thus  remediless.  It  was  his. privilege, 
if  not  his  duty,  on  being  informed  that  the 
defendant  was  unable  to  transport  him  in 
accordance  with  the  terms  of  its  undertaking, 
to  procure  some  other  reasonable  means  of 
conveyance,  and  proceed  on  his  journey. 
He  chose  what  seemed  to  him,  and  appar- 
ently to  the  conductor  of  the  defendant's 
train,  to  be  the  most  direct  and  expeditious 
route,  and  which,  so  far  as  we  are  advised, 
was  the  only  one  practicable.  The  omission 
of  the  defendant  to  fulfill  its  engagement 
caused  the  plaintiff  to  seek  transportation 
over  the  Northern  Pacific  Railroad,  and  it  is 
therefore  justly  liable  for  the  expense  there- 
by incurred,  including  that  incident  to  un- 
avoidable delay.  3  Suth.  Dam.  (2d  Ed.)  § 
936;    2  Sedg.  Dam.  (8th  Ed.)  §  SGI. 

In  ansVver  to  the  question,  "Now,  Colonel,' 
I  wish  you  would  go  on  and  state  to  the 
jury    what,  if  any,  anxiety,  worriment,  etc., 


43S 


DAMAGES  FOK   PERSONAL   INJURIES. 


you  suffered  on  account  of  your  delay,  being 
separated  from  your  baggage,  and  all  of 
those  things  that  are  proper  under  the  ruling 
of  the  court,  in  consequence  of  this  delay," 
the  plaintiff  was  allowed,  notwithstanding 
the  defendant's  objection,  to  testify  lliat  he 
was  greatly  worried,  troubled,  and  annoyed 
by  the  combination  of  circumstances  sur- 
rounding him  at  that  time,  among  which 
v.ere  that  he  had  to  pay  out  more  money 
than  he  had  contemplated  paying  out;  tliat 
the  Northern  Pacitic  Railroad  Company 
would  not  board  him  at  Missoula,  as  they 
did  their  passengers;  his  means  were  limit- 
ed, and  he  did  not  know  how  long  he  had  to 
stay  there;  that  he  could  not  hear  from 
home,  the  telegraph  line  being  broken  down; 
that  his  wife  was  taken  sick,  and  lay  in  bed 
three  days,  in  conse(iuence  of  her  worrimeut, 
and  that  he  could  not  make  her  comfortable 
under  the  circumstances.  Damages  for 
"worriment"  and  disappointment  resulting 
from  such  circumstances  are  too  remote  to  be 
recovered  in  this  action.  The  mental  anxi- 
ety of  the  plaintiff  induced  by  the  sickness 
of  his  wife  and  his  iunbility  to  make  her 
comfortable,  or  his  limited  means,  or  his  in- 
ability to  hear  from  home  owing  to  the  inier- 
ruption  of  telegraphic  communication,  can- 
not be  regarded  as  the  proximate  result  of 
the  alleged  wrongful  acts,  or  omissions  of 
the  defendant,  and  the  court  therefore  erred 
in  permitting  this  testimony  to  be  submitted 
to  the  consideration  of  the  jury. 

The  court  also  erred,  and  for  the  same  rea- 
Bon,  in  instructing  the  jury  generally  that  the 
plaintiff  was  entitled  to  recover,  for  worry  and 
mental  excitement,  such  sum  as  would  fairly 
and  reasonably  compensate  him  therefor. 
"Damages  will  not  be  given  for  mere  incon- 
venience and  annoyance  such  as  are  felt  at 
eveiy  disappointment  of  one's  expectations,  if 
there  is  no  actual  physical  or  mental  injury." 
1  Sedg.  Dam.  (8th  Ed.)  §  42.  And  hence 
damages  cannot  be  recovered  for  anxiety  and 
suspense  of  mind  in  consequence  of  delay 
caused  by  the  fault  of  a  common  carrier. 
Trigg  V.  Railway  Co.,  74  Mo.  147;  Hobbs  v. 
Railway  Co.,  L.  R.  10  Q.  B.  Ill;  Hamlin  v. 
Railway  Co.,  1  Hurl.  &  N.  408;  Walsh  v.  Rail- 
way Co.,  42  Wis.  23.  Nor,  in  an  action  against 
a  railroad  company  for  a  refusal  to  carry, 
can  the  plaintiff  recover  damages  for  fatigue 
suffered  by  him  in  walking  to  his  place  of  des- 
tination, or  for  mertal  and  physical  suffering 
caused  by  sickness  contracted  in  such  walk. 
Railway  Co.  v.  Thomas  (Tex.  Civ.  App.)  27  S. 
W.  419.  But  it  is  urged  by  the  learned  coun- 
sel for  plaintiff  that  tliis  court,  in  the  case  of 
Willson  V.  Railroad  Co.,  5  Wash.  621,  32  Pac. 
468,  and  34  Pac.  146,  repudiated  the  doctrine 
that  damages  cannot  be  recovered  for  mental 
suffering  which  is  not  connected  with  physical 
injury,  and  that  the  testimony  and  the  instruc- 
tion as  to  mental  anxiety  and  excitement  above 
mentioned  were  in  accordance  with  the  prin- 
ciple there  announced.  That  was  an  action 
for  damages  for  an  unlawful  expulsion  of  a 


passenger  from  a  railway  train,  and,  while  it 
is  true  that  we  held,  in  accordance  with  what 
was  deemed  to  be  the  weight  of  autliority, 
that  the  plaintiff  was  entitled  to  compensation 
for  the  sense  of  wrong  suffered  and  the  feel- 
ing of  humiliation  and  disgrace  occasioned  by 
the  wrongful  act,  we  did  not  undertake  or  in- 
tend to  announce  any  rule  with  respect  to  the 
measure  of  damages  in  a  case  like  the  one  at 
bar.  That  case  is  clearly  distinguishable  on 
principle  from  this,  and  the  decision  therein, 
in  our  judgment,  in  no  wise  militates  against 
the  views  we  have  here  expressed.  In  the 
Willson  Case  the  court  proceeded  upon  the 
theory  that  humiliation  and  mental  distress 
were  the  natural  and  proximate,  if  not  in  fact 
the  necessary,  result  of  the  wrongful  act  of 
the  defendant;  but  in  the  present  case  the 
necessary  element  of  proximity  is  wholly  want- 
ing. The  case  of  Railway  Co.  v.  Berry  (Tex. 
App.)  15  S.  W.  48,  cited  by  plaintiff,  and 
which  supports  his  contention,  seems  to  us  to 
be  contrary  to  sound  policy,  and  opposed  to 
the  general  current  of  authority.  In  fact,  the 
trial  court,  in  one  portion  of  its  charge  to  the 
jury,  recognized  and  announced  what  we  hold 
to  be  the  correct  doctrine,  when  it  stated  to 
the  jury  that  the  plaintiff  could  not  recover 
damages  for  any  mental  suffering  experienced 
by  reason  of  the  refusal  of  the  conductor  of 
the  Northern  Pacific  Railroad  Company  to  ac- 
cept the  tickets  tendered  to  him  by  plaintiff 
for  transportation;  and  for  what  reason,  then, 
it  told  the  jury  that  the  plaintiff  was  entitled 
to  damages  for  mental  anxiety  and  suffering 
endiu'ed  in  consequence  of  his  delay,  we  are 
unable  to  perceive.  Surely  no  court  could  say 
that,  in  contemplation  of  law,  the  mental  agi- 
tation or  excitement  caused  by  being  delayed 
on  a  journey  is  of  a  different  character  from 
that  produced  by  unexpectedly  having  to  pay 
extra  fare  for  transportation.  The  mental  sen- 
sation in  each  case,  whether  it  be  called  ex- 
citement, anxiety,  annoyance,  or  worry,  is 
manifestly  the  result  of  disappointed  hope  or 
expectation  merely,  for  which,  as  we  have 
seen,  no  damages  can  be  awarded. 

It  appears  from  the  evidence  that  the  plain- 
tiff is  an  attorney  at  law,  and  well  known  as 
such  at  Spokane,  but  that  he  had  not  been 
engaged  in  the  practice  of  his  profession  for 
two  years  prior  to  the  time  when  his  alleged 
cause  of  action  arose;  and  upon  the  trial  he 
testified  that  he  estimated  the  time  lost  by  his 
being  delayed  to  be  reasonably  worth  the  sum 
of  $25  per  day.  Two  other  attorneys  were  al- 
so called  as  witnessses  for  plaintiff',  one  of 
whom  stated  that  the  services  of  attorneys  of 
the  ability  and  learning  of  the  plaintiff,  who 
were  engaged  in  active  practice  in  Spokane 
during  the  month  of  June,  1894,  were  worth 
from  ?25  to  $30  per  day,  and  the  other  that 
they  were  worth  from  $30  to  $40  per  day.  All 
of  this  evidence  was  objected  to  on  the  al- 
leged ground  that  it  was  incompetent,  irrele- 
vant, and  immaterial,  and  it  is  here  insisted 
that  the  court  erred  in  overruling  the  objec- 
tion.    Now,  it  is  evident  that,  if  the  plaintiff 


DAMAGES  FOR  PERSONAL  INJURIES. 


439 


was  delayed  in  reaching  his  destination  by  the 
fault  of  the  defendant,  he  was  damaged,  on 
account  of  lost  time,  to  an   amount  exactly 
equal  to  that  which  he  would  have  earned  by 
the  practice  of  his  profession  (for  it  is  as  a 
lawyer  only  that  he  claims  damages  for  loss 
of  time)  had  he  been  at  home  during  such  de- 
lay;   but  to  entitle  him  to  a  recovery  it  was 
incumbent  upon  him  to  prove  such  amount  by 
competent  and  legal  evidence.    As  to  the  proof 
of  damages  for  time  lost  by  professional  men, 
Mr.  Sedgwick  says:    "In  the  case  of  most  pro- 
fessional men,  there  can  be  no  way  of  fixing 
a  general  scale  of  remuneration.     The  exclu- 
sive services  of  such  men  cannot  be  measured 
by  any  pecuniary  scale  common  to  a  whole 
class.     The  most  trustworthy  basis  of  dam- 
ages in  such  a  case  is  the  amount  which  the 
injured  party  has  earned  in  the  past.     This  is, 
however,  only  evidence  from  which  the  jury 
will  be  enabled  to  say  what  the  services  of 
such  a  man  as  the  plaintiff  are  worth,  and  the 
jury   should  distinctly  understand  that  it  is 
not  to  be   taken   as  the  necessary  and  legal 
measure  of  damages."    1  Sedg.  Dam.  (Sth  Ed.) 
§  180.     And  this  statement  of  law  seems  to 
be  amply  supported  by  the  authorities.     It  is 
apparent,  therefore,  that  the  "most  trustwor- 
thy basis  of  damages"  was  not  adopted  in  the 
trial  of  this  cause.     There  was  no  proof  what- 
ever of  what  che  plaintiff  actually  earned  as 
an  attorney,  either  before  or  after  the  particu- 
lar time  in  question.     Of  course,   he  earned 
nothing  immediately  before  that  time,  because 
he  had  not  been  engaged  in  the  practice  of  the 
law  for  the  preceding  two  years;   but,  as  he 
resumed  the  practice  of  his  profession  imme- 
diately after  his  arrival  at  Spokane,  we  think 
It   would  have   been   proper  to   have   shown 
what  he  earned  thereafter,  not  as  establishing 
in  itself  the  value  of  his  time,  but  as  evidence 
to  aid  the  jury  in  fixing  it.     It  would  even 
have  been  permissible  to  submit  to  the  con- 
sideration of  the  jury,  under  proper  instruc- 
tions, proof  of  the  earnings  of  the  plaintiff 
when  previously  engaged  in  practicing  law  in 
the  city  of  Spokane;   but  we  are  inclined  to 
the  opinion  that  it  was  hardly  proper  to  prove 
what   the   time  of  practicing  attorneys   was 
worth,  as  that  would  constitute  no  fair  basis 
of  damages,  where  the  value  of  a  person's  time 
depends  so   much   upon   his   individual   exer- 
tions.    Neither   was   it  proper   to  permit   the 
plaintiff  himself  to  state  his  own  opinion  or 
"estimate"  of  the  value  of  his  time,  without 
stating  the  facts  upon  which  such  opinion  was 
based.    Indeed,  the  testimony  of  each  of  the 
witnesses  who  testified  as  to  the  value  of  an 
attorney's  time  was  substantially  nothing  more 
than  an  expression  of  his  individual  ophiion 


upon  the  subject,   and  the  question  involved 
was  not  one  of  science  or  skill,  such  as  could 
not  be  determined  by  a  jury  of  ordinarj^  intel- 
ligence, without  the  aid  of  the  opiuions  of  oth- 
ers.    If  facts  only  had  been  stated,  the  jury 
could  liave  drawn  their  own  conclusions.    Up- 
on this  issue  the  jury  were  instructed  that  for 
loss  of  time  plaintiff  was  entitled  to  recover 
such  sum  as  his  time  at  home,  for  the  period 
he  was  delayed  by  reason  of  defendant's  fail- 
ure to  transport  him,  was  reasonably  and  fair- 
ly worth  in  his  profession  or  business;    and  as 
an  abstract  proposition  of  law  the  insti-uction 
was  correct,  but  as  applied  to  the  proofs  it  was 
misleading,  because  it  virtually  authorized  the 
jury  to  adopt  the  amount  stated  by  the  plain- 
tiff himself,  or  that  which  they  might  infer 
from  the  testimony  <Jf  either  of  the  other  wit- 
nesses, to  be  the  reasonable  value  of  plaintiff's 
time,  as  the  absolute  and  certain  measure  of 
damages.     Even  if  it  were  conceded  that  the 
evidence  was  admissible,  and  that  it  showed  a 
"general  scale   of   remuneration"   common   to 
aU  attorneys  such  as  the  plaintiff,  the  instruc- 
tion would  still  be  open  to  the  same  objection, 
for   it  left  out   of   consideration   entirely    the 
probability  that  plaintiff,  would  have  had  pro- 
fessional employment  had  he   been  at  home 
during  the  period  of  his  detention.     Yonge  v. 
Steamship  Co.,  1  Cal.  3.53;    3  Suth.  Dam.  (2d 
Ed.)    §  93^;    2   Sedg.   Dam.   (Sth   Ed.)    §  8G3. 
The  jury  should  have  been  distinctly  charged 
to  weigh  that  probability,  for  the  manifest  rea- 
son that  the  plaintiff's  right  to  damages  for 
loss  of  time  depended  upon  the  fact  whether 
the  time  during  which  he  was  delayed  would 
I   have  been  of  pecuniary  value  to  him  if  he  had 
arrived  at  his  destination  without  detention. 
Under  the  insti-uction  as  given  the  jury  were 
left    to    determine,    as    best   they    could,    the 
amount  of  damages,  without  being  informed  as 
to  the  rule  by  which  such  damages  should  be 
measured.     It  is  difficult,  at  best,  to  determme 
the  value  of  time  in  a  case  like  this,  where 
such  value  is  not  governed  by  any  established 
rate  of  wages;    and  it  is  therefore  higlily  im- 
portant that  the  jury  should  be  fully  inform<^d 
as  to  the  rules  and  principles  by  which  they 
should  be  guided. 

What  we  have  already  said  renders  it  unnec- 
essary for  us  to  specially  consider  the  remain- 
ing points  made  by  the  defendant.  The  judg- 
ment must  be  reversed,  and  the  cause  remand- 
ed for  a  new  trial. 

HOYT,  C.  J.,  and  GORDON,  J.,  concur. 

DUNBAR,  J.  I  dissent.  I  think  no  sub- 
stantial error  was  committed  by  the  court,  and 
the  judgment  should  be  affirmed. 


440 


DAMAGHS   FOR   PERSONAL    IN.H'KIK.S. 


SUMMERFIELD  v.  WESTERN  UNION 
TEL.    CO. 

(57  N.  W.  973,  87  Wis.  1.) 

Supreme   Court  of   Wisconsin.    Jan.    30,    1894. 

Appeal  from  superior  court,  Douglas  coun- 
ty; Charles  Smith,  Judge. 
.  Action  by  Fred  G.  Suiumerfiold  against 
the  Western  Union  Telegraph  Company  for 
damages  for  delay  in  transmitting  a  mes- 
sage. Judgment  for  plaintiff.  Defendant 
appeals.     Reversed. 

The  other  facts  fully  appear  in  the  follow- 
ing statement  by  WINSLOW,  J.: 

Action  for  damages  for  delay  in  the  deliv- 
ery of  a  telegram.  Plaintiff  resided  on  a 
farm  about  10  miles  from  the  village  of  Iron 
River,  Wis.  His  mother  lived  at  Lisbon,  N. 
D.,  with  plaintiff's  brother  J.  W.  Summer- 
field.  Defendant  had  an  office  at  each  of 
these  places.  October  23,  1892,  J.  W.  Sum- 
merfield  left  at  defendant's  office  at  Lisbon 
a  message  addressed  to  plaintiff,  care  of  Burt 
Clark,  Iron  River,  reading  as  follows: 
"Mother  is  dying.  Come  immediately.  J. 
W.  Summei-field."  The  fees  for  the  transmis- 
sion of  the  message  were  paid,  but  the  evi- 
dence tended  to  show  that  the  message  was 
negligently  delayed,  and  was  not  delivered 
to  Clark  until  October  28,  1892,  and  plaintiff 
did  not  receive  it  until  after  noon  of  that  day. 
Plaintiff's  mother  died  on  the  2Gt'h  day  of 
October.  Plaintiff  claimed  that  he  would 
have  gone  to  his  mother's  bedside  had  he  re- 
ceived the  telegram  in  due  time,  and  that, 
by  reason  of  his  failing  to  receive  the  mes- 
sage until  after  his  mother's  death,  he  was 
deeply  "mortifled,  grieved,  hm-t,  and  shock- 
ed, and  sifffered  intense  anguish  of  body  and 
mind,  and  was  thereby  thrown  into  a  state 
of  nervous  excitement  and  tremor,  which  ren- 
dered him  sick,  and  impaired  his  health  and 
strength,  and  that  he  still  suffers  from  the 
effect  of  the  same."  Upon  the  trial,  objection 
was  made  to  the  reception  of  any  evidence 
under  the  complaint,  because  it  did 'not  state 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion, which  objection  was  overruled,  and  ex- 
ception was  taken. 

The  com't  charged  the  jury,  among  other 
things,  as  follows:  "If  you  find  that  the 
message,  in  the  exercise  of  ordinary  dili- 
gence,- considering  all  the  circumstances  of 
the  case,  was  unreasonably  delayed,  and 
that,  if  it  had  been  delivered  with  reasonable 
promptness,  the  plaintiff  could  and  would 
have  responded  thereto,  and  reached  his 
mother  before  her  death,  and  that  plaintiff 
suffered  mental  pain  from  a  sense  of  disap- 
pointment, sori'ow,  chagrin,  or  grief  at  being 
deprived  of  being  at  his  mother's  deathbed, 
your  verdict  should  be  for  the  plaintiff"  in 
such  sum  as  will  fairly  compensate  him  for 
his  merrtal  suffering  and  damages,  if  any,  to 
his  nervous  system,  caused  by  the  shock  of 
such  mental  suffering."  A  verdict  for  the 
plaintiff  for  .$052.50  was  rendered,  and,  from 
judgment  thereon,  defendant  appealed. 


Catlin  &  Butler,  Carl  C.  Pope,  and  La  Fol- 
lette,  Hai-per,  Roe  &  Zimmerman  (Geo.  H. 
Fearons,  of  counsel),  for  appellant. 

Mental  anguish  alone,  caused  by  the  negli- 
gent failure  of  a  telegraph  company  to 
promptly  transmit  and  deliver  a  message, 
will  not  sustain  an  action  for  damages  by  the 
addressee.  Wyman  v.  Leavitt,  71  Me.  227. 
230;  Bovee  v.  Danville,  53  Vt.  183,  190; 
Canning  v.  Williamstown,  1  Cush.  451,  452; 
Paine  v.  Railway  Co.,  45  Iowa,  569,  573,  574; 
City  of  Salina  v.  Trosper,  27  Kan.  544,  564; 
Keyes  v.  Railway  Co.,  36  Minn.  290,  293,  30 
N.  W.  888;  Clinton  v.  Laning,  61  Mich.  355, 
361,  28  N.  W.  125;  Kennon  v.  Gilmer,  131  U. 
S.  22,  26,  9  Sup.  Ct.  696;  Ewing  v.  Railway 
Co.,  (Pa.  Sup.  1892,)  23  Atl.  340;  Railway 
Co.  V.  McGinnis,  46  Kan.  109,  113,  26  Pac. 
453;  Commissioners  v.  Coultas,  13  App.  Cas. 
222,  225. 

McHugh,  Lyons  &  Mcintosh,  for  respond- 
ent. 

"Mental  anguish  and  suffering  occasioned 
by  the  failure  to  deliver  a  telegraph  message 
are  proper  elements  of  damage  in  an  action 
against  the  telegraph  company  by  the  person 
injured,  and  constitute  grounds  for  recovery, 
though  no  pecuniary  loss  is  shown."  Tele- 
graph Co.  V.  Newhouse,  (Ind.  App.)  33  N.  E. 
800;  8  Suth.  Dam.  260,  645;  37  Cent.  Law 
J.  61;  Womack  v.  Telegraph  Co.,  (Tex.  Civ. 
App.)  22  S.  W.  417;  Bell  v.  Railway  Co.,  L. 
R.  26  Ir.  428;  Railroad  Co.  v.  Griffin,  (Tenn.) 
22  S.  W.  737;  Beasley  v.  Telegraph  Co.,  39 
Fed.  181;  Telegraph  Co.  v.  Sti'atemeier,  (Ind. 
App.)  32  N.  E.  871;  So  Relle  v.  Telegraph  Co., 
55  Tex.  310;  Yonng  v.  Telegraph  Co.,  107  N. 
C.  370,  11  S.  E.  1044;  Reese  v.  Telegraph  Co., 
123  Ind.  294,  24  N.  E.  163;  Telegraph  Co.  v. 
Henderson.  89  Ala.  510,  7  South.  419;  Wads- 
worth  V.  Telegraph  Co.,  86  Tenn.  695,  8  S. 
W.  574;  Chapman  v.  Telegraph  Co.,  (Ky.)  13 
S.  W.  880;  Stuart  v.  Telegraph  Co.,  66  Tex. 
580,  18  S.  W.  351;  Willson  v.  Railroad  Co., 
(Wash.)  32  Pac.  468. 

WINSLOW,  J.,  (after  stating  the  facts.) 
The  exact  question  presented  by  the  instruc- 
tion of  the  coiu't  to  the  jury  is  whether  men- 
tal anguish  alone,  resulting  from  the  negli- 
gent nondelivery  of  a  telegram,  constitutes 
an  independent  basis  for  damages.  At  com- 
mon law  it  was  well  settled  that  mere  in- 
jury to  the  feelings  or  affections  did  not  con- 
stitute an  independent  basis  for  the  recov- 
ery of  damages.  Cooley,  Torts,  271;  Wood's 
Mayne,  Dam.  (1st  Amer.  Ed.)  §  54,  note  1. 
It  is  true  that  damages  for  mental  suffering 
have  been  generally  allowed  by  the  com*ts  in 
certain  classes  of  cases.  These  classes  are 
well  stated  by  Cooper,  J.,  in  his  learned 
opinion  in  the  case  of  Telegraph  Co.  v.  Rog- 
ers, (Miss.)  9  South.  823,  as  follows:  "(1) 
Where,  by  the  merely  negligent  act  of  the 
defendant,  physical  injury  has  been  sustain- 
ed;   and  in  this  class  of  cases  they  are  com- 


I)A.MA<;ES   FOlt    PKKSOXAL    IN.IUUIBS. 


441 


pcnsatory,  and  the  reason  given  for  their 
allowance  is  that  the  one  cannot  be  separat- 
ed from  the  other.  (2)  In  actions  for  breach 
of  the  contract  of  marriage.  (3)  In  cases  of 
\Aillful  wrong,  especially  those  affecting  the 
liberty,  character,  reputation,  personal  se- 
ciu-ity,  or  domestic  relations  of  the  injm-ed 
party."  To  this  latter  class  belong  the  ac- 
tions of  malicious  prosecution,  slander  and 
libel,  and  seduction,  and  they  contain  an  ele- 
ment of  malice.  Subject  to  the  possible  ex- 
ceptions contained  in  the  second  and  third 
of  the  above  classes,  it  is  not  believed  that 
there  was  any  case, — certainly  no  well-con- 
sidered case,— prior  to  the  year  1881,  which 
held  that  mental  anguish  alone  constituted 
a  sufficient  basis  for  the  recovery  of  dam- 
ages. In  that  year,  however,  the  supreme 
court  of  Texas,  in  So  Relle  v.  Telegraph  Co., 
5.5  Tex.  308,  decided  that  mental  suffering 
alone,  caused  by  failure  to  deliver  such  a 
telegram  as  the  one  in  the  present  case,  was 
sufficient  basis  for  damages.  The  principle 
of  this  case  has  been  followed  with  some  va- 
riations, by  the  same  com't,  in  many  cases 
since  that  decision,  and  its  reasoning  has 
been  substantially  adopted  by  the  courts  of 
last  resort  in  the  states  of  Indiana,  Ken- 
tucky, Tennessee,  North  Carolina,  and  Ala- 
bama, in  cases  which  are  cited  in  the  briefs 
of  counsel.  On  the  other  hand,  the  doctrine 
has  been  vigorously  denied  by  the  highest 
com-ts  in  the  states  of  Georgia.  Florida,  Mis- 
sissippi, Missoiiri,  Kansas,  and  Dakota,  and 
by  practically  the  unanimous  current  of  au- 
thority in  the  federal  courts.  All  of  these 
cases  will  be  preserved  in  the  repoi't  of  this 
case,  and  the  citations  need  not  be  repeated 
here.  The  question  is  substantially  a  new 
one  in  this  state,  and  we  are  at  liberty  to 
adopt  that  rule  which  best  commends  itself 
to  reason  and  justice.  It  is  true  that  it  has 
been  held  by  this  court,  in  Walsh  v.  Railway 
Co.,  42  Wis.  32,  that,  in  an  action  upon 
breach  of  a  contract  of  carriage,  damages 
Avere  not  recoverable  for  mere  mental  dis- 
tress; but,  as  we  regard  this  action  as  being 
in  the  nature  of  a  tort  action,  founded  upon 
a  neglect  of  the  duty  which  the  telegraph 
company  owed  to  the  plaintiff  to  deliver  the 
telegram  seasonably,  that  decision  is  not  con- 
trolling in  this  case.  The  reasoning  in  favor 
of  the  recovery  of  such  damages  is,  in  brief, 
that  a  wrong  has  been  committed  by  defend- 
ant which  has  resulted  in  injvu-y  to  the  plain- 
tiff as  grievous  as  any  bodily  injm-y  could  be, 
and  that  the  plaintiff  should  have  a  remedy 
therefor.  On  the  other  hand,  the  argument 
is  that  such  a  doctrine  is  an  innovation  upon 
long-established  and  well-understood  princi- 
ples of  law;  that  the  difficulty  of  estimating 
the  proper  pecuniary  compensation  for  men- 
tal distress  is  so  great,  its  elements  so  vague, 
shadowy,  and  easily  simxilated,  and  the  new 
field  of  litigation  thus  opened  up  so  vast, 
that  the  courts  should  not  establish  siich  a 
inile.  Regarding,  as  we  do,  the  Texas  i-ule 
as   a    clear  innovation   upon    the   law   as   it 


previously  existed,  we  shall  decline  to  follov^ 
it,  and  shall  adopt  the  other  view,  namely, 
that  for  mental  distress  alone,  in  such  a  case 
as  the  present,  damages  are  not  recoverable. 
The  subject  has  been  so  fully  and  ably  dis- 
cussed in  opinions  very  recently  delivered 
that  no  very  extended  discussion  will  be  at- 
tempted here.  We  refer  specially  to  the 
opinions  in  Telegraph  Co.  v.  Rogers,  (Miss.) 
9  South.  823;  Connell  v.  Telegraph  Co.,  (Mo. 
Sup.)  22  S.  W.  345;  Telegraph  Co.  v.  Wood, 
57  Fed.  471.  See,  also,  Judge  Lurton's  dis- 
senting opinion  in  Wadsworth  v.  Telegraph 
Co.,  86  Tenn.  695,  8  S.  W.  574.  In  the  last- 
named  opinion  the  following  very  apt  re- 
marks are  made:  "The  reason  why  an  inde- 
pendent action  for  such  damages  cannot  and 
ought  not  to  be  sustained  is  found  in  the  re- 
moteness of  such  damages,  and  in  the  meta- 
physical character  of  such  an  injiu-y,  consid- 
ered apart  from  physical  pain.  Such  injui'ies 
are  generally  more  sentimental  than  substan- 
tial. Depending  largely  on  physical  and 
nervous  conditions,  the  suffering  of  one  un- 
der precisely  the  same  circumstances  would 
be  no  test  of  the  suffering  of  another.  Vague 
and  shadowy,  there  is  no  possible  standard 
by  which  such  an  injury  can  be  justly  com- 
pensated, or  even  approximately  measured. 
Easily  simulated  and  impossible  to  disprove, 
it  falls  within  all  of  the  objections  to  specu- 
lative damages,  which  are  universally  ex- 
cluded because  of  their  uncertain  character." 

Another  consideration  which  is,  perhaps,  of 
equal  importance,  consists  in  the  gi-eat  held 
for  litigation  which  would  be  opened  by  the 
logical  application  of  such  a  rule  of  dam- 
ages. If  a  jury  must  measure  the  mental 
suffering  occasioned  by  the  failure  to  deliv- 
er this  telegram,  must  they  not  also  measure 
the  vexation  and  grief  arising  from  a  fail- 
ure to  receive  an  invitation  to  a  ball  or  a 
Thanksgiving  dinner?  Must  not  the  morti- 
fication and  chagrin  caused  by  the  public  use 
of  opprobrious  language  be  assuaged  by  mon- 
ey damages?  Must  not  every  wrongful  act 
which  causes  pain  or  grief  or  vexation  to  an- 
other be  measured  in  dollars  and  cents? 
Surely,  a  court  should  be  slow  to  open  so 
vast  a  field  as  this  without  cogent  and  over- 
powering reasons.  For  om-selves  we  see  no 
such  reasons.  We  adopt  the  langxiage  of 
Gantt,  P.  J.,  in  Connell  v.  Telegraph  Co.,  su- 
pra: "We  prefer  to  travel  yet  awhile  super 
antiquas  vias.  If,  in  the  evolution  of  society 
and  the  law,  this  innovation  should  be  deem- 
ed necessary,  the  legislatm*e  can  be  safely 
trusted  to  introduce  it,  with  those  hmitations 
and  safeguards  which  will  be  absolutely  nec- 
essary, judging  from  the  variety  of  cases  tliat 
have  sprung  up  since  the  promulgation  of  the 
Texas  case." 

It  was  argued  that  under  chapter  171, 
Laws  18S5,  (Sanb.  it  B.  Ann.  St.  §  1770b,) 
damages  for  injm-ies  to  feelings  alone  might 
be  recovered.  This  law  provides  that  tele- 
graph companies  shall  bo  liable  for  all  dam- 
ages occasioned  by  failure  or  neghgeuce  or 


442 


DAMAGES  FOR  PERSONAL  INJURIES. 


their  operators,  servants,  or  employes  in  re- 
ceivingr,  copying,  transmitting,  or  delivering 
dispatches  or  messages.  We  cannot  regard 
this  statute  as  creating,  or  Intended  to  create, 
in  any  way,  new  elements  of  damage. 
■\Vtiether  Its  purpose  was  to  obviate  the  diffl- 
cultios  which  were  held  fatal  to  a  recovery 
in  tlie  case  of  Oandee  v.  Telegraph  Co.,  34 
Wis.  471,  or  to  effect  some  other  object,  is 
not  a  question  which  now  arises;  but  it 
seems  clear  to  us  that,  had  a  radical  change 
In  the  law  relating  to  the  kinds  of  suffering 
wliich  should  furnish  a  ground  of  damages 
been  contemplated,  the  act  would  have  ex« 
pressed  that  intention  in  some  unmistaljable 
way.  We  see  nothing  in  the  law  to  indicate 
such  intention. 
Finally,  it- is  said  that  verdicts  for  injuries 


to  the  feelings  alone  have  been  sustained  1d> 

this  com't,  and  the  following  cases  are  cited. 
Wightman  v.  Railway  Co.,  73  Wis,  169,  4(^ 
N.  W.  689;  Craker  v.  Railway  Co.,  36  Wis. 
657;  Draper  v.  Baker,  61  Wis.  450,  21  N,  W. 
527.  Without  reviewing  these  cases  in  de- 
tail, it  is  sufficient  to  say  that  there  was  in 
aU  of  them  the  element  of  injiu*y  or  discom- 
fort to  tlie  person,  resulting  either  from  actu- 
al or  threatened  force,  and  they  cannot  be 
relied  upon  as  precedents  for  the  allowance 
of  damages  for  mental  stifferings  alone. 

It  follows  from  these  views  that  the  instruc- 
tion excepted  to  was  erroneous.  Judgment 
reversed,  and  action  remanded  for  a  new 
trial, 

CASSODAY,  J.,  dissents.      « 


DAMAGES  FOK   PKltSONAL   INJUKIES. 


443 


MAHONEY  V.   BELFORD. 

(132  Mass.  3'J3.) 

Supreme  Judicial  Court  of  Massachusetts. 
Suffolli.      :»Iarch  3,  1SS2. 

ExceptioDS  from  superior  court,  Suffolk 
coimty;    Staples,  Judge. 

Action  by  Deunis  .Mahouey  against  Charles 
A.  Belford  for  slander.  Verdict  for  plaintiff. 
Exceptions  by  defendant.  Exceptions  over- 
ruled. 

C.  G.  Keyes,  for  plaintiff.  H.  E.  Swasey, 
for  defendant. 


DEVENS,  J.  The  defendant  had  charged 
the  plaintiff  with  stealing  from  his  employer, 
F.  M.  Weld.  He  had  pleaded  a  justification, 
but  at  the  trial  did  not  seek  to  establish  the 
truth  of  the  words  alleged  to  have  been  ut- 
tered. He  did  endeavor,  in  mitigation  of 
damages,  and  to  show  that  tlie  slander  did 
not  originate  with  himself,  to  offer  testimony 
as  to  the  general  reputation  as  to  the  plain- 
tiff's having,  during  the  time  he  lived  with 
Weld,  and  also  at  the  time  of  the  alleged 
slander,  stolen  from  him.  In  such  an  action, 
evidence  may  be  given  of  the  general  repu- 
tation of  the  plaintiff  in  those  respects  in 
which  it  has  been  assailed  by  alleged  slander. 
Where  one  has  been  charged  with  theft,  it 
may  be  shown  that  he  was  generally  reputed 
a  thief,  in  order  thus  to  show  that  no  serious 
injury  can  have  been  inflicted  on  him.  Clark 
V.  Brown,  116  Mass.  504.  But  what  the  de- 
fendant sought  to  prove  was  not  the  plain- 
tiff's general  reputation,  which  Avas  the  gen- 
eral character  he  had  gained  in  the  com- 
munity by  his  course  of  life,  but  what  was 
the  common  rumor  as  to  a  particular  transac- 
tion, namely,  his  having  stolen  from  Weld. 
The  defendant  sought  to  show,  not  that  the 
plaintiff's   general   reputation   was    bad,    but 


that  in  a  single  instance  he  was  generally  re- 
puted to  have  behaved  badly.  This  would 
have  been  to  have  proved  the  common  talk 
as  to  an  individual  subject  of  scandal.  A 
general  report  that  the  plaintiff'  is  guilty  of 
the  particular  crime  with  which  he  was  char- 
ged cannot  be  received  in  evidence  in  mitiga- 
tion of  damages.  Alderman  v.  French,  1 
Pick.  1;  Bodwell  v.  Swan.  3  Pick.  3TG:  Clark 
V.  Munsell,  0  Mete.  (Mass.)  373;  Stone  v. 
Vai'uey,  7  Mete.  (Mass.)  86;  Peterson  v.  Mor- 
gan, 116  Mass.  350. 

Upon  the  question  of  damages  the  court 
instructed  the  jury  "that  they  niiglit  consider 
the  injury,  if  any  shown,  to  the  mental  feel- 
ings of  the  plaintiff',  which  was  the  natural 
and  necessary  result  of  the  words  used,  if  in 
fact  they  were  used  as  alleged,  and  were 
slanderous;  that  mental  suffering  was  an 
element  of  damage."  This  was  correct.  The 
words,  if  uttered  at  all,  were  uttered,  as  ap- 
pears by  the  bill  of  exceptions,  in  an  angry 
dispute  at  an  election,  in  the  presence  of 
from  twenty  to  sixty  persons.  While  the  evi- 
dence was  circumstantial,  and  not  direct, 
that  the  plaintiff  had  been  actually  damnified 
and  had  endured  mental  suffering  in  conse- 
quence, "the  occasion,  circumstances,  manner 
and  nature"  of  the  alleged  slander  were  such 
as  warranted  the  plaintiff  in  contending  that 
they  had  occasioned  actual  injury  and  mental 
suffering,  and  in  seeking  substantial  damages 
therefor.  "Undoubtedly,"  said  Chief  Justice 
Bigelow  in  Markham  v.  Russell,  12  xVUen. 
573,  "the  material  element  of  damage  in  an 
action  for  slander  is  the  injury  done  to  char- 
acter. But  it  is  not  the  sole  element.  A 
jiu-y  may  have  a  right  also  to  consider  the 
mental  suffering  which  may  have  been  occa- 
sioned to  a  party  by  the  publication  of  the 
slanderous  words."  See,  also,  Marble  v. 
Chapin,  132  Mass.  225. 

Exceptions  overruled. 


i44 


DAMAGES  FOU  PERSONAL   INJURIES. 


CAHILL  V.  MURPHY.    (No.  14,047.) 

(30  Pac.  195,  94  Cal.  29.) 

Supreme  Court  of  California.    March  26,  1892. 

Commissioners'  decision.  Department  2. 
Appeal  from  superior  court,  Humboldt  coun- 
ty;   G.  W.  Hunter,  Judge. 

Action  by  Mary  Cahill  against  Daniel  Mur- 
phy for  slander.  From  a  judgment  for  plain- 
tiif,  and  from  an  order  denying  his  motion 
for  a  new  trial,  defendant  appeals.  Affirm- 
ed. 

Frank  McGowan,  for  appellant.  J.  H.  G. 
Weaver,  for  respondent. 


FITZGERALD,  C.  This  is  an  action  for 
slander.  The  complaint  alleges,  in  sub- 
stance, that  on  or  about  the  21st  day  of  Sep- 
tember, 1889,  and  for  a  long  time  prior 
thereto,  plaintiff,  with  her  children,  occupied 
certain  rooms  in  an  hotel  of  which  the  de- 
fendant was  owner  and  proprietor;  that  one 
of  these  rooms  wjis  situated  on  the  ground 
floor  of  the  hotel,  and  used  by  her  for  the 
purpose  of  carrying  on  and  conducting  a  gen- 
eral merchandising  business;  that  on  said 
last-mentioned  date,  the  soot  in  the  chimney 
leading  from  the  room  used  as  a  store  be- 
came ignited,  causing  an  alarm  of  fire  to  be 
given;  and  it  is  further  alleged,  u.pon  in- 
formation and  belief,  that  the  fire  was  com- 
municated to  the  soot  in  the  chimney  from  a 
fire  in  the  stove  situated  in  said  store.  The 
slanderous  words,  out  of  which  this  action 
arose,  are  alleged  to  have  been  falsely  and 
maliciously  spoken  by  the  defendant  of  and 
concerning  the  plaintiff,  and  are  laid  as  fol- 
lows: "This  is  twice  you  [the  plaintiff  mean- 
ing] have  tried  to  burn  us  [the  said  hotel 
meaning]  out  to  get  your  fourteen  hundred 
dollars  insurance.  But  I  will  report  you 
[the  said  plaintiff  meaning]  to  the  insurance 
company  to-morrow  morning,  and  have  your 
insurance  taken  away  from  you."  It  is  fur- 
ther alleged  that  the  defendant,  by  the  use 
of  these  words,  intended  to  convey  the  mean- 
ing that  the  plaintiff  willfully  and  malicious- 
ly communicated  the  fire  to  the  soot  in  said 
chimney,  and  that  by  so  doing  she  was 
guilty  of  an  attempt  to  commit  the  crime  of 
arson,  and  that  they  were  so  understood  by 
those  in  whose  presence  they  were  uttered, 
to  the  damage  of  plaintiff's  character  and 
business  in  the  sum  of  $10,000.  A  demurrer 
Avas  interposed  to  the  complaint,  which,  upon 
the  grounds  stated,  was  properly  overruled. 
Defendant  thereupon  answered,  specifically 
denying  the  material  allegations  of  the  com- 
plaint, and,  upon  the  issues  thus  joined, 
plaintiffjiad  verdict  and  judgment  for  $1,200. 

The  only  error  complained  of,  which  we 
deem  it  necessary  to  consider,  relates  to  tlie 
ruling  of  the  court  upon  defendant's  objec- 
tion to  the  following  question  propounded  to 
plaintiff  on  her  examination  in  chief  as  a 
witness,  and  after  she  had  testified,  without 


objection,  that  she  had  "a  family  of  four 
children."  "Question.  How  many  of  them 
are  dependent  upon  you  for  support?"  (.Ob- 
jected to  on  the  ground  that  the  question  'is 
incompetent  and  immaterial.'  The  objection 
was  overruled  by  the  court,  and  defendant 
excepted.)  Answer.  Three  are  dependent  up- 
on me  at  present."  It  is  claimed  that  the 
effect  and  purpose  of  this  testimony  was  to 
arouse  the  sympathies  and  sentimental  feel- 
ings of  the  jui-y,  to  the  prejudice  of  defend- 
ant's case,  by  the  introduction  of  an  element 
that  did  not  belong  to  it,  and  which  the  jury 
could  not  properly  consider  in  the  assess- 
ment of  damages.  In  Rhodes  v.  Naglee,  66 
Cal.  081,  0  Pac.  863,  the  ruling  of  the  court 
below  permitting  the  plaintiff,  against  de- 
fendant's objection,  to  prove  that  he  was  a 
married  man,  and  had  a  family,  was  held 
not  to  be  erroneous.  And  in  Dixon  v.  Allen, 
GO  Cal.  527,  11  Pac.  179,  the  mother  of  the 
plaintiff  was  allowed  to  testify  as  to  the 
number  of  her  children,  their  ages,  and  the 
death  of  her  husband.  The  rule  laid  down 
by  this  court  in  those  cases  rests  upon  the 
principle  (although  not  stated)  that,  as  men- 
tal suffering  entitled  the  plaintiff  to  compen- 
sation in  cases  of  this  character,  such  suffer- 
ing may  be  increased,  and  the  damages  con- 
sequently enhanced,  by  the  fact  that  the 
members  of  the  plaintiff's  family  would  suf- 
fer by  reason  of  the  disgrace  visited  upon 
her  by  the  slanderous  charge.  It  was  there- 
fore competent  in  this  case,  on  the  question 
of  damages,  to  prove  the  number  and  ages 
of  plaintiff's  children;  but  that  they  were 
dependent  on  her  for  support  was  irrelevant, 
and  not  within  the  issues  raised  by  the 
pleadings;  therefore  eiToneous.  But  was  it 
such  a  material  eiTor  as  would  justify  a  re- 
versal? The  rule  in  this  state  is  well  set- 
tled that  injury  will  be  presumed  from  er- 
ror unless  the  record  aflirmatively  sliows  to 
the  contrary.  It  was  competent,  as  we  have 
stated,  for  the  plaintiff  to  prove  the  number 
and  ages  of  her  children,  and,  if  it  appeared 
from  tlie  evidence  that  they  were  minors, 
the  presumption  would  be  that  they  were 
naturally  and  legally  dependent  on  her  for 
support.  The  effect,  therefore,  of  such  evi- 
dence would  be  the  same  as  if  proven  by 
direct  testimony.  The  evidence  upon  which 
the  verdict  was  founded  shows  that  the  slan- 
derous words  charged  were  spoken  wantonly 
and  maliciously.  The  plaintiff  was  there- 
fore entitled  to  recover  of  the  defendant  ex- 
emplary or  punitive  damages,  and  the  assess- 
ment of  such  damages  was  almost  entirely 
in  the  discretion  of  tlie  jury.  In  view,  there- 
fore, of  the  enormity  of  the  charge,  and  the 
situation  of  the  parties,  the  plaintiff"  being  a 
defenseless  woman,  coupled  with  the  amount 
of  damages  awarded  by  the  jury  as  com- 
pared with  the  sum  sued  for,  we  are  satisfied 
that  the  jury  was  not  influenced  by  this  evi- 
dence prejudicially  to  the  defendant's  case 
The  verdict  might  well  have  been  for  a  mucb 
larger  sum,  and  yet  not  obnoxious  to  the  ol)- 


DAMAGES  FOR   PERSONAL   INJURIES. 


445 


jection  that  it  was  excessive.  In  ttiis  case 
we  think  the  evidence  immaterial,  and  its  ad- 
mission by  the  court  a  mere  technical  error. 
People  V.  Pick,  89  CaJ.  144,  26  Pac.  759.  The 
.ludgment  and  order  should  be  affirmed,  and 
we  so  advise. 


We  concur:    TEMPLE,  C;   FOOTE,  C. 

PER  CURIAM.  For  the  reasons  given  in 
the  foregoing  opinion  the  judgment  and  or- 
der are  affirmed. 

Hearing  in  bank  denied. 


446 


AGGRAVATION  OF  DAMAGES. 


HAYNER  V.  COWDEN. 

(27  Ohio  St.  292.) 
Supreme  Court  of  Ohio.    Dec.  Term,  1875. 
Error  to  district  court,  Miami  county. 

James  Murray,  J.  T.  Janvier,  and  H.  G. 
Sellers,  for  plaintiff  in  error.  Oonover  & 
Cruiyhead  and  Morris  &  Son,  for  defendant 
in  error. 

WRIGHT,  J.  The  slander  alleged  in  the 
petition  consists  in  falsely  clmrgiug  plaintiff, 
a  minister  of  the  gospel,  with  drunkenness. 
It  is  also  averred  that  the  words  were  spok- 
en of  and  concerning  him  in  his  ministerial 
profession  and  pastoral  office.  The  demurrer 
admits  all  that  is  averred,  and  thus  this 
question  is  raised:  Are  words  which  charge 
a.  minister  of  the  gospel  with  drunkenness, 
when  spoken  of  him  in  his  profession  or  call- 
ing, actionable  per  se?  We  answer  that  they 
are.  We  understand  the  rule  to  be,  that 
words  spoken  of  a  person  tending  to  injure 
him  in  his  office,  profession  or  trade  are  thus 
actionable.  1  Starkie,  Sland.  9;  Townsh. 
Sland.  &  L.  §  182;  2  Add.  Torts,  957  (section 
2,  c.  17,  Edition  of  1876  of  this  book,  has  a 
large  collection  of  authorities  on  the  sub- 
ject); 1  Am.  Lead.  Cas.  102;  Foulger  v.  New- 
comb,  L.  R.  2  Exch.  327;  Demarest  v.  Har- 
ing,  G  Cow.  76. 

Calling  a  clergyman  a  drunkard  was  held 
actionable  in  McMillan  v.  Birch,  1  Binney, 
176;    Chaddoek  v.  Briggs,  13  Mass.  251. 

Such  words  are  actionable  because  they 
tend  to  deprive  him  of  the  emoluments  which 
pertain  to  his  profession,  and  may  prevent 
his  obtaining  employment.  It  is  not,  as 
counsel  seem  to  suppose,  that  giving  a 
clergyman  this  right  of  action  is  because  his 
office  is  higher  than  that  of  his  fellow  men. 
It  is  a  right  which  belongs  to  all  who  have 
professions  or  callings,  and  in  this  clergy- 
men are  not  different  from  others. 

This  principle  is  entirely  different  from 
that  upon  which  proceeded  the  cases  of  Hol- 
liugs worth  v.  Shaw,  19  Ohio  St.  430;  Dial  v. 
Holter,  6  Ohio  St.  228;  Alfele  v.  Wright,  17 
Ohio  St.  238.  In  all  these,  the  words  im- 
puted a  criminal  offense,  and  did  not  relate 
to  profession  or  calling. 

Upon  the  trial  of  the  case,  it  was  insisted 
by  defendant  that  the  words  were  not  spo- 
ken of  the  plaintiff  in  his  character  as  a  min- 
ister. The  court  fairly  left  this  to  the  jury, 
and  said  if  they  were  not  so  spoken,  they 
would  find  for  defendant.  The  jury  find  this 
issue  for  the  plaintiff,  and  in  the  face  of 
that  finding,  it  is  impossible  for  us,  sitting 
as  a  court  of  error,  to  say  that  they  were  not 
spoken  of  the  plaintiff  in  his  character  or 
capacity  as  a  clergyman.  If  they  were  as 
we  have  seen,  they  are  actionable. 

In  the  cases  cited  by  defendant— Lumly  v. 
Allday,  1  Tyrw.  217;  Brayne  v.  Cooper,  5 
Mees.  &  W.  249;    Ayre  v.  Craven,  2  Adol.  & 


E.  2;  Buck  v.  Heuly,  31  Me.  558;  Redway  v. 
Gray,  31  Vt.  292;  Van  Tapel  v.  Capron,  1 
Denio,  250— it  was  held  that  the  words  spo- 
ken did  not  touch  the  plaintiffs  in  their  va- 
rious trades  or  employments.  But  to  charge 
a  minister  with  drunkenness  does  have  such 
an  effect.  Congregations  would  not  employ 
clergymen  with  intemperate  habits,  and  the 
development  of  such  a  vice  would  be  cause 
for  speedy  removal  from  office.  When  the 
question  is  reduced  to  a  mere  matter  of  dol- 
lars and  cents,  the  purity,  the  integrity,  the 
uprightness  of  a  minister's  life  is  his  capital 
in  this  world's  business. 

Against  the  objection  made,  plaintiff  offer- 
ed evidence  of  the  wealth  of  the  defendant, 
and  in  the  charge  the  court  said  this  evi- 
dence might  be  considered  in  connection 
with  the  question  of  exemplary  damages. 
We  see  no  error  in  the  admission  of  the  evi- 
dence or  the  charge  of  the  court  upon  the 
subject.  That  punitive  or  exemplary  dam- 
ages in  a  proper  case  may  be  given  is  not  an 
open  question  in  Ohio.  In  Roberts  v.  Ma- 
son, 10  Ohio  St.  277;  Smith  v.  Pittslmrg,  Ft. 
W.  &  C.  Ry.  Co.,  23  Ohio  St.  10,  the  court 
allowed  the  jury  to  consider  the  wealth  of 
defendant  in  connection  with  the  question  of 
punitive  damages.  If,  then,  punishment  be 
an  object  of  a  verdict,  a  small  sum  would 
not  be  felt  by  a  defendant  of  large  wealth. 
The  vengeance  of  the  law  would  scarcely  be 
appreciated,  and  he  could  afford  to  pay  and 
slander  still.  There  are  cases  which  put 
the  admission  of  the  evidence  upon  this 
ground.  Alpin  v.  Morten,  21  Ohio  St.  536,  in- 
timates that  the  reason  is  to  enable  the  jury 
to  determine  how  much  plaintiff  has  been 
injured.  This  case  collects  the  authorities 
on  both  sides  of  the  question,  to  which 
might  be  added  McBride  v.  Laughlin,  5 
Watts,  375;  Wagoner  v.  Richmond,  Wright, 
173;  Sexton  v.  Todd,  Id.  320;  2  Greenl.  Ev. 
249;  1  Am.  Lead.  Cas.  199,  note  6;  Horsley 
v.  Brooks,  20  Iowa,  115;  Buckley  v.  Knapp, 
48  Mo.  153.  We  see  no  error  in  the  admis- 
sion of  the  evidence,  or  the  charge  of  the 
court  on  the  subject. 

There  are  some  other  questions  raised  by 
counsel,  to  which  we  briefly  allude: 

The  defendant  asked  the  court  to  charge 
the  jury:  "If  they  find  that  the  words 
spoken  by  the  defendant  of  and  concerning 
the  plaintiff  were  untrue,  and  that  the  de- 
fendant has  not  reasonable  cause  to  believe 
them  to  be  ti'ue,  yet,  if  they  are  satisfied 
from  the  evidence  that  the  defendant  did  be- 
lieve them  to  be  true,  such  state  of  facts 
would  not  warrant  a  verdict  for  punitive  or 
exemplary  damages,  but  for  compensatory 
damages  only."  With  which  request  the 
court  refused  to  comply,  but,  on  the  con- 
trary, chai'ged  the  jury  that  such  Avas  not 
the  law,  to  which  the  defendant  then  and 
there  excepted. 

We  do  not  understand  the  law  of  slander 
to  be,  that  it  is  a  defense  that  the  slanderer 
believed  his  words  to  be  true,  when  he  had 


AGGRAVATION  OF  DAMAGES. 


447 


no  grounds  for  so  believing.  Belief  must 
have  a  foundation  in  something.  Take 
away  the  foundation,  and  what  can  be  left? 
The  charge  seems  to  us  a  solecism.  Belief 
€Pn  only  be  claimed  as  a  defense,  or  in  mit- 
igation, where  it  is  based  upon  such  facts  or 
reasons  as  would  incline  a  reasonable  per- 
son so  to  believe.  Inasmuch  as  this  charge 
was  asked  in  reference  to  exemplary  dam- 
ages, and  there  was  evidence  tending  to 
show  that  the  words  had  been  spoken  under 
circumstances  indicating  wantonness  and 
recklessness,  the  charge  was  properly  re- 
fused. 

It  appears  to  be  seriously  argued  that  in  a 
minister  of  the  gospel  a  single  act  of  intox- 


ication is  not  a  fault,  and  therefore  a  charge 
of  that  kind  cannot  be  injurious.  We  can 
hardly  assent  to  this  proposition.  In  a  re- 
ligious teacher  one  offense  of  the  kind  must 
be  considered  a  grave  departure  from  pro- 
priety and  duty;  and  to  say  that  the  act  has 
been  committed  is  calculated  to  impair  use- 
fulness. 

As  to  the  question  of  excessive  damages: 
The  verdict  was  large;  still  we  do  not  think 
defendant  can  complain,  in  view  of  all  the 
circumstances  of  the  case- 
Judgment  affirmed. 

SCOTT,  C.  J.,  and  WHITMAN  and  JOHN- 
SON,  JJ.,  concurred.    DAY,  J.,  dissented. 


448 


AGGKAVATIUN  OF  DAMAGES. 


BENNETT  v.  HYDE. 

(6  Conn.  24.) 

SuiiriMiie  Court  of  Errors  of  ConiK'cliLUt.      July, 
lS2o. 

Action  for  slander.  Verdict  for  plaintiff. 
Heard  on  motion  for  new  trial.  Motion  de- 
nied. 

Cleavelaud  &  Frost,  for  the  motion.  God- 
flard  (fc  Judson,  opposed. 

HOSMEK,  C.  J.  The  evidence  in  a  cause 
must  be  confined  to  the  points  in  issue;  and 
the  character  of  either  party  cannot  be  en- 
quired into,  unless  put  in  issue  expressly,  or 
by  the  nature  of  the  proceed in.y  itself.  1 
I*hil.  Ev.  139. 

In  this  case,  conformably  to  the  established 
doctrine  of  our  courts,  the  character  of  the 
phiintiff  was  in  issue.  It  was  the  object  of 
the  defendant's  attack;  the  injury  to  it  is 
the  gravamen  complained  of;  and  for  the 
vindication  of  it,  the  present  action  was  in- 
stituted. It  was  said,  by  Chief  Justice  Kent, 
in  Foot  V.  Tracy,  1  Johns.  4G,  52:  "The  char- 
acter of  the  plaintiff  must  be  considered  as 
coming  in,  at  least  collaterally,  upon  the 
trial;"  and  this  court,  in  Stow  v.  Converse. 
4  Conn.  42,  which  was  an  action  for  a  libel, 
declared  that  "the  plaiutift"s  character  may 
be  proved,  because  it  is  in  issue."  The  plain- 
tiffs character  is  not  made  the  subject  of 
enquiry,  at  the  defendant's  option,  and  shut 
out  of  view,  or  the  subject  of  investigation, 
as  shall  best  subserve  the  defendant's  pleas- 
ure and  interest.  To  a  rule  so  inequitable, 
for  the  want  of  mutuality,  the  courts  in  this 
state  have  never  acceded;  but  they  have 
recognized  and  acted  on  the  principle,  that 
the  final  object  of  the  plaintiff's  suit,  is  the 
vindication  of  his  character;  and  that  his 
reputation,  of  consequence,  is  put  in  issue, 
by  the  nature  of  the  proceeding  itself.  The 
case  of  Rawson  against  Hungerford,  in  Mid- 
dlesex couutj'',  is  not  merely  analogous  with 
this,  but  goes  beyond  it.  In  an  action  for 
the  breach  of  a  promise  of  marriage,  the 
character  of  the  plaintiff  was  considered  to  be 
so  far  in  issue  as  to  authorize  the  reception 
of  evidence,  in  opposition  to  the  defendant's 


obj('ctiou.--not  to  sustain  it  from  attack,  bur 
to  prove  its  excellence. 

It  has  been  frequently  adjudged,  in  this- 
state,  and  may  be  considered  as  established 
law,  that  the  plaintilf  in  an  action  of  slander 
may  prove  the  amount  of  the  defendant's 
property  to  aggravate  damages;  and,  on  the 
other  hand,  that  the  defendant  may  recur  U* 
the  same  evidence  for  the  purpose  of  miti- 
gating them.  The  same  rule  is  deducible 
from  the  law  of  Massachusetts  (Lamed  v, 
Butlinton,  3  Mas^s.  54(;);  admitting  evidence^ 
in  proof  of  the  plaintiff's  rank  and  condition,, 
to  increase  the  damages,  or  to  lessen  them,, 
according  as  the  facts  should  be  found.  It 
is  not  to  be  inferred,  that  the  damages  are, 
of  course,  to  be  proportioned  to  the  defend- 
ant's property;  but  merely  that  property 
forms  an  item,  which,  in  the  estimate,  is 
deserving  of  regard.  Great  wealth  is  gen- 
erally attended  with  correspondent  influence: 
and  little  influence  is  the  usual  concomitant 
of  little  property.  The  declarations  of  a  man 
of  fortune  concerning  the  character  of  an- 
other, like  a  weapon  thrown  by  a  vigorous 
hand,  will  not  fail  to  inflict  a  deeper  wound 
than  the  same  declarations  made  by  a  man  of 
small  estate,  and,  as  a  consequence  not  un- 
common, of  small  influence.  Property,  there- 
fore, may  be,  and  often  is,  attended  with  the 
power  of  perpetrating  great  damage,  and,  in 
the  estimate  of  a  jury,  becomes  an  interesting 
enquiry.  I  am  not  asserting  what  ought  to 
be,  but  what  is;  and  that  the  degree  of  in- 
jury, necessarily,  is  dependent,  in  some  meas- 
ure, on  the  considerations  before  mentioned. 
Whether  the  rule  that  the  amount  of  the  de- 
fendant's property,  in  the  action  of  slander, 
may  be  enquired  into,  originated  solely  from 
those  principles  in  combination  -with  the  jus- 
tice and  propriety  of  admitting  somewhat  of 
a  penal  sanction,  in  cases,  in  which  the  most 
atrocious  calunmy  is  not  punishable  in  a  crim- 
inal prosecution,  I  do  not  declare.  But  that 
such  rule  does  exist,  and  has  uniformly  been 
recognized  in  our  courts,  is  unquestionable; 
and  it  is  not  the  subject  of  regret,  that  the 
reputations  of  the  iimocent  and  estimable 
thus  have  an  additional  shield  against  the 
malice  of  the  calumniator. 

The  other  judges  were  of  the  same  opinion. 
New  trial  not  to  be  granted. 


A(;(;ka\  ATiuN  of  damages. 


449 


JOHNSON  V.  SMITH. 

(64  Me.  553.) 

Supreme  Judicial  Court  of  Maine.     1875. 

Trespass  by  George  W.  Joliuson  against 
Manasseli  Smith  for  assault  and  battery. 
Verdict  for  plaintiff.  Heard  on  defendant's 
exceptions.     Exceptions   sustained. 

The  exceptions  Avere  as  follows:  "The  de- 
fendant offered  evidence  of  his  property  and 
means,  as  bearing  upon  the  matter  of  puni- 
tive damages  and  in  mitigation  thereof.  The 
plaintiff  introduced  no  evidence  tending  to 
show  that  the  defendant  had  any  property 
whatever,  and  did  not  claim  that  the  dam- 
ages should  be  increased  by  reason  of  wealth 
or  any  peetmiary  ability  on  the  part  of  the 
defendant.  The  court  excluded  this  evidence 
offered  by  the  defendant,  and  he  excepted. 

"The  defendant  also  requested  the  judge  to 
instruct  the  jury,  that,  the  assault  and  bat- 
tery being  acts  for  which  the  defendant  was 
subject  to  prosecution  and  punishment  by  a 
criminal  action  or  indictment,  they  would 
not  be  authorized  in  this  case  to  allow  any- 
thing as  exemplary  or  punitive  damages; 
which  instruction  the  judge  refused  to  give. 
but  did  athrmatively  instruct  the  jury  that 
the  law  says  that,  in  a  case  of  gross  and 
malicious  assault,  the  jury  may,  in  their  dis- 
cretion, if  they  deem  proper,  award  exem- 
plary damages,  but  there  is  no  rule  of  law  by 
which  the  plaintiff  can  claim  it  as  a  legal 
right." 

T.  H.  Haskell,  for  plaintiff.  Nathan  Webb, 
for  defendant. 

DANFORTH,  J.  The  exception  to  the  in- 
struction to  the  jury,  that  "the  law  says  that 
in  a  case  of  gross  and  malicious  assault,  or 
of  gross  and  aggravated  injury,  the  jury 
may,  in  their  discretion,  if  they  deem  proper, 
award  exemplary  damages,  but  there  is  no 
rule  of  law  by  which  the  plaintiff  can  claim 
it  as  a  legal  right,"  must  be  overruled.  Such 
law  has  become  so  well  settled  in  this  state, 
even  in  cases  where  the  defendant  is  also  lia- 
ble to  criminal  prosecution,  not  only  by  the 
decided  cases,  but  also  by  a  uniform  and  in 
point  of  time  a  somewhat  extended  practice 
in  our  courts,  that  it  is  now  too  late  to  dis- 
turb it,  unless  by  legislative  enactment.  God- 
dard  v.  Railway  Co.,  57  Me.  202,  and  cases 
there  cited.  Besides,  to  allow  the  exception 
contended  for,  and  permit  the  plaintiff  to  re- 
cover exemplary  damages  for  injury  to  his 
property,  and  refuse  it  under  similar  circum- 
stances for  an  injury  to  his  person,  would  in- 
troduce a  greater  inconsistency  and  render  the 
law  more  unsymmetrical  than  is  now  claim- 
ed for  it. 

LAW  DAM.2d  Ed.-29 


The  other  exception  must  be  sustained.  It 
does  not  clear! 3-  appear  whether  the  testi- 
mony offered  would  have  tended  to  show  de- 
fendant's general  reputation  as  to  property 
or  his  actual  condition  in  that  respect.  In  ei- 
ther event,  it  should  have  been  received,  as  it 
was  pertinent  to  the  issue.  So  far  as  the 
cause  of  action  rests  upon  an  injury  to  the 
character,  or  an  insult  to  the  person,  com- 
pensatory damages  may  be  increased  by  proof 
of  the  wealth  of  the  defendant.  This  is  upon 
the  ground  that  wealth  is  an  element  which 
goes  to  make  up  his  rank  and  intlueiiee  in 
society,  and  thereby  renders  the  injury  or  in- 
sult resulting  from  his  wrongful  acts  the 
greater.  Humphries  v.  Parker,  52  Me.  507, 
508;  2  Greeul.  Ev.  §  2G9.  But  in  such  cases. 
as  it  is  rather  the  reputation  for,  than  the 
possession  of,  wealth,  which  is  the  cause  of 
this  increased  rank,  the  testimony  must  cor- 
respond, and  only  the  general  question  as  to 
his  circumstances  can  be  asked,  and  not  the 
detail.     Stanwood  v.  Whitmore,  63  Me.  2011. 

But  when  exemplary  damages  are  claimed, 
a.  different  question  is  presented.  The  defend- 
ant's pecuniary  ability  is  then  a  matter  for 
the  consideration  of  the  jury,  on  the  ground 
that  a  given  sum  Avould  be  a  much  greater 
punishment  to  a  man  of  small  means  than  to 
one  of  larger.  McBride  v.  McLaughlin,  5 
Watts.  375.  Upon  this  point  actual  wealth 
could  only  be  material.  As  bearing  upon  this 
point  the  testimony  Avas  offered  and  exclud- 
ed. This  took  from  the  jury  an  element  prop- 
er for  their  consideration. 

It  is  true  the  plaintiff  offered  no  proof  up- 
on this  point  and  claimed  no  damages  by 
reason  of  defendant's  "wealth  or  pecuniary 
ability;"  but  if  it  Avas  competent  for  the  plain- 
tiff to  prove  defendant's  wealth  to  increase 
his  damages,  it  was  equally  competent  for 
the  defendant  to  show  a  want  of  it  to  dimin- 
ish them;  and  the  waiving  of  the  right  by  the 
one,  is  no  reason  why  it  should  be  taken  from 
the  other.  Nor  does  the  mere  non-claim  of 
damages  on  that  ground,  the  right  to  punitive 
damages  being  still  insisted  upon,  take  it 
from  the  consideration  of  the  jury.  Hence 
the  exclusion  of  the  testimony  left  them  in 
darkness  where  they  Avere  entitled  to  light. 
If  the  plaintiff  really  intended  to  admit  that 
the  defendant  was  without  means,  the  testi- 
mony could  have  done  him  no  harm;  but 
such  an  admission  was  not  distinctly  made, 
and  in  the  absence  of  it,  the  exclusion  of  th  ■ 
testimony  would  be  injurious  to  the  defend- 
ant. It  certainly  deprived  him  of  a  legal 
right. 

Exceptions  sustained. 

APFLETON,  C.  J.,  and  WALTON,  BAR- 
ROWS, and  PETERS,  JJ.,  concurred. 


450 


AGGRAVATION  OF  DAMAGES. 


BECK  V.  DOWELL. 

(20  S.  W.  209,  111  Mo.  506.) 

{Supreme   Court    of  Missouri,   Division    No.  2. 
Sept.  20,  1892. 

Appeal  from  circuit  court,  Lewis  county; 
Benjamin  E.  Turner,  Judge. 

Action  by  Jennie  Beclv,  by  lier  next  friend, 
Oliver  Beck,  Sr.,  against  Elijah  Dowell,  ex- 
ecutor. From  a  judgment  for  plaintiff,  de- 
fondant  appeals.     Allii-med. 

Blair  &  Marchand  and  M.  McKeag,  for  ap- 
pellant. Clay  &  Ray,  P.  L.  Scbofield,  and  J. 
C.  Anderson,  for  respondent. 


GANTT,  P.  J.  Tbis  cause  was  appealed 
from  tbe  circuit  court  of  Lewis  county  to  tbe 
St,  Louis  court  of  appeals.  Tbat  court,  in 
an  opinion  by  Judge  Rombauer,  affirmed  tbe 
judgment  of  tbe  circuit  court,  (40  Mo.  App. 
71;)  but  Judge  Biggs  being  of  tbe  opinion 
tbat  tbe  conclusion  reacbed  by  tbe  majority, 
tbat  evidence  of  tbe  financial  condition  of  tbe 
plaintiff,  in  an  action  wben  tbe  evidence  will 
justify  tbe  jury  in  awarding  exemplary  or 
punitive  damages,  was  admissible,  is  in  con- 
flict with  and  opposed  to  two  decisions  of  tbis 
court,  to  wit,  Overbolt  v.  Vietbs,  93  Mo.  422, 
G  S.  W.  74,  and  Stephens  v.  Railroad  Co.,  96 
.AIo.  207,  9  S.  W.  5S9,  the  cause  was,  under 
tbe  constitution,  certified  to  tbis  court. 

1.  Wben  the  cause  was  beard  in  tbe  court 
of  appeals,  the  instructions  were  not  in  tbe 
record.  No  efforts  were  made  to  supply  them 
in  tbat  court,  and  that  court  rightly  proceed- 
ed on  tbe  assumption  that  the  trial  court  bad 
correctly  declared  the  law  to  the  jury.  Since 
tbe  case  has  reacbed  tbis  ^^ourt,  a  certified 
copy  of  the  instructions  has  been  filed  with 
the  record.  The  propriety  of  considering 
these  declarations  of  law  by  this  court,  under 
these  circumstances,  suggests  itself  at  once. 
While  this  court  obtains  jurisdiction  to  "re- 
bear  and  determine  a  cause  so  certified  to 
us  by  either  of  the  appellate  courts,  as  in 
cases  of  jurisdiction  obtained  by  ordinary 
appellate  process,"  there  is  nothing  in  the 
constitution  that  justifies  parties  in  assuming 
that  we  will  or  can  take  cognizance  of  mat- 
ters not  in  the  record.  Wben  a  record  is  de- 
ficient in  any  material  respect,  the  practice 
is  uniform  tbat  tbe  party  desiring  the  absent 
record  should  suggest  the  diminution,  and 
apply  for  a  writ  of  certiorari,  or  file  stipula- 
tions in  this  court,  supplying  tbe  record.  In 
this  case  nothing  of  the  kind  has  been  done, 
but  from  the  brief  of  the  appellant,  we  take 
it  be  assumes  tbat  these  instructions  are 
properly  before  us.  There  is  no  hardship  in 
requiring  parties  to  govern  themselves  by 
the  rules  of  procedure,  established  for  the 
disposition  of  causes.  For  tbe  purposes  of 
this  appeal,  these  insti-uctions  are  no  part  of 
the  record,  and  the  cause  will  be  determined 
on  tbe  presumption  tbat  tbe  trial  court  cor- 
rectly instructed  the  jury.     Parties  must  pur- 


sue legal  methods  in  perfecting  their  tran- 
scripts, and  in  tbe  proper  courts,  and  in  prop- 
er seasons. 

2.  The  point  in  this  record,  then,  is  that 
upon  which  tbe  court  of  appeals  divided.  Is 
evidence  of  tbe  financial  condition  of  tbe 
plaintiff  admissible  in  an  action  for  damages, 
when  there  are  circumstances  of  oppression 
or  malice?  That  exemplary  damages  may  be 
recovered  in  actions  for  trespass  or  personal 
torts  accompanied  by  circumstances  of  malice 
or  oppression  is  no  longer  open  to  question 
in  tbis  state.  Buckley  v.  Knapp,  48  Mo.  152. 
Nor  is  it  controverted  tbat  it  is  perfectly 
competent  to  show  tbe  financial  ability  of  the 
defendant  in  such  a  case.  Tbe  case  of  Ste- 
phens V.  Railroad  Co.,  96  Mo.  214,  9  S.  W. 
589,  was  an  action  for  compensatory  dam- 
ages alone,  and  the  learned  judge  who  wrote 
tbe  opinion  expressly  says:  "There  is  noth- 
ing in  the  case  to  justify  the  giving  of  ex- 
emplary damages,  and  the  damages  should 
be  confined  to  compensation  for  tbe  injuries 
sustained."  Tbe  case  of  Overbolt  v.  Vietbs, 
93  Mo.  422,  6  S.  W.  74,  had  no  element  in  it 
justifying  exemplary  damages,  and  this  court 
held  that  it  was  not  improper  to  exclude  evi- 
dence of  the  mother's  financial  condition  in 
a  suit  for  tbe  death  of  her  child  which  bad 
been  drowned  in  a  pond,  "in  view  of  the  fact 
tbat  she  had  been  allowed  to  state  her  condi- 
tion in  life,  and  that  she  did  her  own  house- 
work and  bad  no  servant."  We  do  not  think 
either  of  these  cases  can  be  considered  as  de- 
cisive of  tbe  point  in  this  case.  Exemplary 
damages  ai-e  allowed,  not  only  to  compensate 
the  sufferer,  but  to  puuish  the  otfender. 
Franz  v.  Hilterbrand,  45  Mo.  121;  Callahan 
V.  Caffarata,  39  Mo,  137.  The  evidence  in 
this  case  tended  to  show  that  tbe  plaintiff 
was  a  girl  about  16  years  old;  that  her  fa- 
ther Avas  a  tenant  of  defendant;  that  on  tbe 
day  she  was  shot  by  defendant  her  father 
and  his  sons  were  ti'yin.?  to  water  a  cow  in  a 
lot  of  the  defendant;  that  a  difficulty  ensued, 
—a  general  fight;  that  she  was  standing  iu 
the  lot  looking  on,  unarmed,  when  the  de- 
fendant turned  upon  her,  and  shot  her  through 
tbe  thigh.  In  other  words,  tbe  defendant, 
with  a  deadly  weapon,  shot  an  unarmed  girl 
without  lawful  provocation.  We  think  there 
was  ample  evidence  from  which  the  jury 
could  find  willful,  wanton  injury.  In  1  Sutb. 
Dam.  p.  745,  it  is  said:  "In  actions  for  torts, 
tbe  damages  for  which  cannot  be  measured 
by  a  legal  standard,  all  the  facts  constituting 
and  accompanying  tbe  wrong  should  be  prov- 
ed; and  though  there  be  a  legal  standard 
for  the  principal  wrong,  if  aggravations  exist 
they  may  be  proved  to  enhance  damages;  and 
every  case  of  personal  tort  must  necessarily 
go  to  tbe  jury  on  its  special  facts.  These 
embrace  tbe  res  gestae  and  tbe  age,  sex,  and 
status  of  tbe  parties;  this,  whether  tbe  case 
be  one  for  compensation  only,  or  also  for 
exemplary  damages,  wben  they  are  allowed." 
In  Bump  V.  Betts,  23  Wend.  85,  the  supreme 
court  of  New  York,  on  a  question  of  excess- 


AG(.;UA\A'J'l()X   OF  DA.MACKS. 


451 


ive  damages,  pointed  to  the  fact  that  the  de- 
fendant had  the  command  of  great  wealth, 
and  that  the  plaintiff  was  a  poor  man.  In 
McNamara  v.  King,  7  111.  432,  in  an  action 
for  assault  and  battery,  the  court  pennitted 
the  plaintiff  to  show  he  was  a  poor  man  with 
a  large  familj\  The  supreme  court  of  Illi- 
nois, in  affirming  that  ruliug,  said:  "We  are 
also  of  the  opinion  that  the  circuit  court  de- 
cided correctly  in  admitting  the  evidence  and 
giving  the  instruction.  In  actions  of  this 
kind,  the  condition  in  life  and  circumstances 
of  the  parties  are  peculiarly  the  proper  sub- 
jects for  the  consideration  of  the  jury  in  es- 
timating the  damages.  Their  pecuniary  cir- 
cumstances may  be  inquired  into.  It  may 
be  readily  supposed  that  the  consequences  of 
a  severe  personal  injury  would  be  more  dis- 
astrous to  a  person  destitute  of  pecuniary 
resources,  and  dependent  wholly  on  his  man- 
ual exertions  for  the  support  of  himself  and 
family,  than  to  an  individual  differently  situ- 
ated in  life.  The  effect  of  the  injury  might 
be  to  deprive  him  and  his  family  of  the  com- 
forts and  necessaries  of  life.  It  is  proper 
that  the  jury  should  be  influenced  by  the  pe- 
cuniary resom-ces  of  the  defendant.  The 
more  affluent,  the  more  able  he  is  to  remuner- 
ate the  party  he  has  wantonly  injured."  In 
Grable  v.  Margrave,  4  111.  372,  in  an  action 
for  seduction,  the  trial  court  admitted  evi- 
dence to  show  plaintiff  was  a  poor  man.  The 
supreme  court,  on  appeal,  said:  "The  court 
therefore  decided  correctly  in  admitting  evi- 
dence showmg  the  pecuuiary  condition  of  the 
plaintiff".  This  evidence  does  not  go  to  the 
Jury  for  the  puiioose  of  exciting  their  preju- 
dices in  favor  of  the  plaintiff"  because  he  is 
a  poor  man.  but  to  "feuable  them  to  understand 
fully  the  effect  of  the  injury  upon  him,  and  to 
give  him  such  damages  as  his  peculiar  condi- 
tion in  life  and  circumstances  entitle  him  to 
receive."  In  Gaither  v.  Blowers,  11  Md.  530, 
in  an  action  for  assault  and  battery,  the  trial 
court  having  admitted  evidence  for  the  plain- 
tiff, with  a  view  of  increasing  his  damages, 
that  he  was  a  laboring  man  and  had  a  wife 
and  children  to  support,  the  supreme  court, 
after  quoting  the  language  of  McNamara  v. 
King,  7  111.  432,  says:  "This  is  good  sense, 
and  is  sustained  by  the  decisions  in  most  of 
the  states.  An  injury  done  to  a  person  not 
dependent  on  manual  labor  for  the  support 
of  himself  and  family  is  in  no  wise  as  great 


as  one  to  a  person  so  situated."  In  Reed  v. 
Davis,  4  Pick.  215,  the  supreme  court  of 
Massachusetts,  in  an  action  for  trespass  In 
forcibly  evicting  plaintiff  from  his  home, 
says:  "One  of  the  defendants  stated  to  a 
witness,  in  answer  to  his  inquiry  whether  he 
thought  the  plaintiff"  could  not  make  him  suf- 
fer, that  'the  plaintiff  had  been  to  jail,  and 
sworn  out,  aud  was  not  able  to  do  anything.' 
Now,  that  circumstance  was  to  be  talcen  into 
consideration  by  the  jury.  There  is  nothing 
more  abhorrent  to  the  feelings  of  the  sub- 
jects of  a  free  government  than  oppiessiug 
the  poor  and  distressed  under  the  forms  aud 
color,  but  really  in  violation,  of  the  law."  "It 
is  found  that  the  dwelling  house  was  small, 
but  the  damages  are  not  to  be  graduated  by 
the  size  of  the  building.  The  plaiutilf  also 
was  poor.  He  had  seen  better  days,  but  had 
been  reduced  in  his  circumstances.  He  was 
thought  not  to  be  able  to  do  anything  in  vin- 
dication of  his  rights  at  the  law."  In  Dailey 
V.  Houston,  58  Mo.  361,  this  court  said:  "It  is 
next  insisted  that  the  court  improperly  told 
the  jury  that,  in  the  estimation  of  damages, 
they  might  take  into  consideration  the  'con- 
dition in  life  of  plaintiff's,  and  their  pui  suits 
and  nature  of  their  business.'  There  is  no 
doubt  but  that,  in  estimating  damages  in 
such  cases,  the  jury  may  properly  take  into 
cousideration  the  pecuniary  conditim  of  the 
parties,  their  position  in  society,  and  all  othin* 
circumstances  tending  to  show  the  vaid.ctive- 
ness,  or  atrocity  or  want  of  atrocity,  in  the 
transaction,  and  which  tend  to  chaiacttMize 
the  assault."  This  decision  of  Judge  V(  ries 
was  concurred  in  by  all  the  judges.  It  has 
never,  to  our  knowledge  and  so  far  as  we  can 
ascertain,  been  questioned,  denied,  or  criti- 
cised. It  is  in  harmony,  as  we  have  seen, 
with  the  decisions  of  other  courts  of  great 
ability.  It  is  in  harmony  with  the  ten:  eucy 
of  the  courts  to  place  before  the  triers  of 
facts,  whether  court  or  jury,  every  fact  that 
will  aid  them  in  arriving  at  a  correct  verdict, 
it  is  evident  in  this  case  its  eff'ect  was  not  to 
create  prejudice  or  passion.  There  is  noth- 
ing that  smacks  of  either  in  the  verdict.  Ac- 
cordingly we  affirm  the  judgment  of  the 
court  of  appeals,  as  indicated  by  the  opinion 
of  the  majority  of  the  judges  of  that  c.;urt, 
on  this  as  well  as  all  other  points  ruled  in  the 
case,  and  it  will  be  so  ce/tifled  to  that  cuurt. 
All  concur. 


452 


MITIGATION'   OF  DAMAGES. 


GOLDSMITH'S  ADM'R  v.  JOY. 

(17  Atl.  1010,  61  Vt,  488.) 

Supreme   Court    of   Vermont.     Bennington. 
June  13,  1889. 

Exceptions  from  Bennington  county  court; 
PowEUs,  Judge. 

Trespass  for  an  assault  and  battery,  com- 
miited  on  one  Goldsniitli,  brouglit  by  Gold- 
sinitli's  administrator  against  Moses  Joy,  Jr. 
Defendant  did  not  deny  that  he  made  the  as- 
sault. It  appeared,  however,  that  at  the 
time,  and  just  before,  hot  words  had  passed 
between  the  parties,  and  defenthint  claimed 
tiiat  he  committed  the  wrong  under  the  in- 
tluence  of  the  passion  induced  by  the  insult- 
ing and  unjustifiable  language  of  plaintiff's 
intestate,  and  that  this  fact  should  be  con- 
sidered by  the  jury  in  reduction  both  of  the 
actual  and  exemplary  damages.  Defendant 
was  the  superintendent  and  general  manager 
of  the  construction  of  a  system  of  water- 
works in  the  city  of  Bennington,  and  in  that 
capacity  had  in  his  euiploy  about  lOU  men, 
mostly  or  all  foreigners.  It  was  in  reference 
to  the  treatment  of  these  men  by  defendant 
that  tlie  intestate  used  the  alleged  insulting 
language.  He  was  suffering  from  Bright's 
disease  at  the  time  of  the  affray,  and  subse- 
quently died  of  it.  It  was  claimed  that  his 
death  was  materially  hastened  by  the  as- 
sault. 

The  court  instructed  the  jury  to  award 
])laintilf  actual  damages  at  any  r;d.e,  no  mat- 
ter what  the  provocation  wiiich  led  to  the 
assault  might  liave  been.  Upon  the  subject 
of  exemplary  damages  the  cliarge  was  as  fol- 
lows: "Now,  then,  as  to  the  other  question 
of  damages.  In  actions  of  this  kind  under 
the  laws  of  this  state,  the  jury  is  permitted 
(not  compelled,  but  permitted)  in  their  dis- 
cretion to  allow  to  the  plaintiff,  in  addition 
to  the  ordinary  compensatory  damages,  such 
damages  as  in  their  judgment  the  character 
of  the  assault  requires,  in  order  that  their 
verdict  may  serve  as  a  tei'ror  to  evil-doers. 
l"'his  is  called  '  exemplary  damages,' — dam-' 
ages  that  are  awarded  by  way  of  example;  a 
verdict  that  the  community  can  look  upon  as 
the  wise  judgment  of  the  jury,  exercised  in 
a  case  where  it  will  be  calculated  to  restrain 
attacks  of  this  kind  in  the  future.  I  have 
said,  gentlemen,  tliat  the  allowance  of  the 
damages  is  permitted  to  the  jury.  Tliey  are 
not  awarded  in  any  case  unless  the  trespass 
— unless  the  assault  and  battery — was  of 
such  a  wanton,  malicious,  or  aggravated 
character  as  leads  the  jury  to  think  that  an 
example  ouglit  to  be  made  of  the  case. 
Oftentimes  an  assault  is  committed  by  one 
man  upon  another  under  sueh  circumstances 
that  the  jury  can  see  honestly  that  there  was 
no  malice;  that  there  was  no  wantonness; 
that  there  were  no  high-handed  acts  that 
would  justify  the  awarding  of  more  than 
compensatory  damages.  On  the  other  hand, 
many  cases  exist  where  the  attack  is  of  a 
wanton  character,  where  it  is  inexcusable, 
where  it  is  of  a  high-hande  I  nature,  an  1  the 


jury,  looking  at  all  the  facts  in  the  case, 
wisely  say  tiiat  the  public  are  entitled  to  have 
an  example  made  in  the  particular  case,  iu 
order  that  in  the  future  not  only  the  defend- 
ant iiimself,  but  that  other  persons  who  get 
into  affrays,  shall  be  restrained  from  making 
these  high-handed,  inexcusable,  and  wanton 
attacks  upon  another.  So  that,  gentlemen, 
this  question,  then,  is  one  that  addresses  it- 
self to  your  wise  discretion.  Do  you  think, 
in  view  of  what  is  shown  here,  that  this  at- 
tack was  of  such  a  character  as  warrants  you 
in  awarding  exemplary  damages?  If  yon  do, 
then  the  amount  of  these  damages  rests 
wholly  in  your  wise  discretion.  Wiiether  it 
shall  be  a  small  sum  or  a  large  sum,  you  are 
to  judge  of;  but  in  any  event,  gentlera;^n,  if 
you  award  damages  of  this  nature,  you  are 
to  do  it  because  you  think  that  this  assault 
upon  Mr.  Goldsmith  was,  under  the  circum- 
stances, wholly  inexcusable  and  wanton  on 
the  part  of  the  defendant.  Now,  then,  in 
respect  to  that  question,  mere  wortls  made 
use  of  by  one  person  to  another  are  no  legal 
excuse  whatever  for  the  infliction  of  personal 
violenco.  It  makes  no  difference  how  vio- 
lent the  language  used  may  be,  no  man  has 
the  right  to  use  personal  violence  upon  an- 
other when  he  is  induced  to  simply  by  the 
use  of  words.  That  is  no  defense  to  the  ac- 
tion. But  when  you  come  to  the  question  of 
whether  a  particular  case  is  one  that  deserves 
the  awarding  of  exemplary  damages,  then 
you  are  to  consider  all  the  circumstances  in 
the  case;  the  provocation,  if  any,  that  the 
defendant  had;  and  everything  that  is  calcu- 
lated on  the  one  hand  to  aggravate  his  act, 
and  on  the  other  hand  to  palliate  his  act,  is 
to  be  considered.  As  I  have  already  said  on 
the  main  question  of  compensatory  damages, 
there  is  no  defense  here  whatever.  No  nnit- 
ter  what  was  said,  no  matter  how  much 
provocation  the  defendant  had,  he  is  bound 
to  answer  for  the  compensatory  d.imaies,  at 
any  event.  As  to  exemplary  damages,  in 
the  exercise  of  a  wise  discretion  you  will  not 
allow  them  unless  you  are  satisfied  that  the 
act  of  the  defendant  was  high-handed,  wan- 
ton, and  inexcusable,  and  in  determining  that 
question  you  are  to  take  into  view  all  the 
provocation  that  he  had.  Now,  then,  gentle- 
men, if  the  provocation  was  slight,  it  is  quite 
different,  and  it  should  have  less  weight  in 
determining  the  question  whether  you  shall 
award  exemplary  damages  than  it  would 
have  if  the  provocation  was  great.  Then, 
again,  you  may  look  at  the  parties  them- 
selves. If  Goldsmith  was  a  feeble  old  man, 
in  poor  health,  and  physically  unable  to  com- 
pete with  the  defendant  in  a  personal  en- 
counter, and  the  defendant  without  any 
provocation  that  you  in  your  judgment  say 
warrants  an  assault. — a  violent  assault, — if 
he  then  makes  an  assault  that  is  altogether 
undue,  uncalled  for,  in  view  of  the  special 
circumstances  existing,  why,  then,  it  would 
be  a  case  that  the  jury  might  award  exem- 
jtlary  damages.  The  law  takes  notice  of  the 
hot  jiassions  that  people  fall  into  when  they 


MITIGATIOX  or  DAMAGES. 


are  engajred  in  disputes,  not  by  wiiy  of  mak- 
ing a  complete  defense  to  an  action  for  dam- 
ages, but  by  way  of  raising  a  doubt  in  the 
minds  of  the  jury  respecting  the  awarding 
of  exemplary  damages.  And  in  determining 
tiiat  question  the  jury  are  justified  in  loolving 
<it  the  parties  as  they  stand  before  them. 
Take  an  ignorant  class  of  men  tiiat  we  have 
in  every  community, —  men  wiio  liave  by 
their  education  and  bringing  up  had  less  op- 
portunities to  come  within  the  circle  of  good 
onier  and  of  good  behavior, — the  jury  raigiit 
well  say  tiiat  as  to  that  class  of  men,  if  tiiey 
fall  into  disputes  and  come  to  blows,  tliere 
would  be  less  occasion  for  setting  an  ex- 
auiple  tiian  tliere  would  be  if  the  parties  oc- 
cupied a  higher  and  more  prominent  position 
in  society.  The  influence  of  an  example  in  a 
case  of  this  kind  oltentimes  depends  quite 
largely  upon  the  character  of  the  parties  in- 
volved. You  can  cast  about  you  in  your 
mind's  eye,  in  the  community,  and  pick  out 
men  who,  if  they  should  fall  into  an  affray 
of  this  kind,  would  draw  away  very  far  from 
the  moorings  of  good  citizenship  and  good 
behavior,  and  then  an  example  would  be  de- 
manded, if  one  inllicted  an  assault  upon  an- 
other." Verdict  and  judgment  for  plaintiff. 
Exceptions  by  defendant. 

Martin  &  Archibald,  J.  L.  Martin,  and  J. 
C  Baker,  for  plaintiff.  Batchelder  &  Bates 
and  W.  B.  Sheldon,  for  defendant. 

TYLER,  J.  The  court  instructed  the  jury 
that  tiieie  was  no  defense  to  the  claim  for 
actual  or  compensatory  damages  ;  that  words 
were  no  legal  excuse  for  the  infliction  of  per- 
sonal violence;  that,  no  matter  how  great  the 
provocation,  the  defendant  was  bound  in  any 
event  to  answer  for  these  damages.  It  is  a 
general  and  wholesome  rule  of  law  that  when- 
ever by  an  act  which  he  could  have  avoided, 
and  which  cannot  be  justitied  in  law,  a  per- 
son inflicts  an  immediate  injury  by  force,  he 
is  legally  answeraUe  in  damage  s  to  the  party 
injured.  The  question  whether  provocative 
words  may  be  given  in  evidence  under  the 
general  issue  to  reduce  actual  damages  in  an 
action  of  trespass  for  an  assault  and  battery 
has  undiMg. )ne  wide  discussion.  The  English 
cases  lay  down  the  general  rule  that  provoca- 
tion may  mitigate  damages.  The  case  of 
Eraser  v.  BerkeL^y,  7  Car.  &  P.  621,  is  often 
referred  to,  in  which  Lord  Abinger  held  that 
evidence  might  be  given  to  show  that  the 
plainlilf  in  somedegreebrought  the  thing  up- 
on himself;  "that  it  would  be  an  unwise  law 
if  it  did  not  make  allowance  for  human  in- 
firmities; and,  if  a  person  commit  violence  at 
a  time  when  he  is  smarting  under  immediate 
provocation,  that  is  matter  of  mitigation." 
TiNDAL,  C.  J.,  in  Perkins  v.  Vaughan,  5 
Scott,  N.  Pt.  881,  said:  "I  think  it  will  be 
found  that  the  result  of  the  cases  is  that  the 
matter  cannot  be  given  in  evidence  where  it 
amounts  to  a  defense,  but  that,  where  it  does 
not  amount  to  a  defense,  it  may  be  given  in 
initigjition  of  damages."    Li n ford  v   Lake,  3 


!  Hurl.  &  N.  275;  2  Add.  Torts,  §  1393,  recog- 
nizes the  same  rule.  In  this  country,  2 
Greenl.  E  v.  §  93,  states  the  rule  that  a  provoca- 
tion by  the  plaintift  may  be  thus  shown,  if  so 
recent  as  to  induce  a  presumjition  that  vio- 
lence was  committed  under  the  immediate 
influence  of  the  passion  thus  wrongfully  ex- 
cited by  the  plaintiff.  The  earlier  cases  com- 
monly cited  in  support  of  this  rule  are  Cush- 
man  v.  llyan,  1  Story,  100;  Avery  v.  Ray,  1 
Mass.  12;  Lee  v.Woolsey,  19  Johns.  319;  and 
Maynard  v.  Beardsley,  7  Wend.  560.  The  su- 
preme court  of  Massachusetts  has  generally 
recognized  the  doctrine  that  immediate  prov- 
ocation may  mitigate  actual  damages  of  this 
kind.  Mowry  v.  Smith,  9  Allen,  67;  Tyson 
V.  Booth,  100  Mass.  258;  and  Bonino  v,  Cale- 
donio,  144  Mass.  29 J,  11  X.  E.  Rep.  98.  It 
is  also  said  in  2  Sedg.  Dam.  (7th  Ed.)  521, 
note:  "If,  making  dut;  allowance  for  the  in- 
firmities of  human  temper,  the  defendant  has 
reasonable  excuse  for  the  violation  of  pub- 
lic order,  then  there  is  no  foundation  for  ex- 
emplary damages,  and  the  plaintiff  can  claim 
only  compensation.  It  is  merely  the  corollary 
of  this  tliat  where  there  is  a  reasonable  ex- 
cuse for  the  defendant,  arising  from  the  prov- 
ocation or  fault  of  the  plaintift',  but  not  suffi- 
cient entirely  to  justify  the  act  done,  there 
can  be  no  exemplary  damages,  and  the  cir- 
cumstances of  mitigation  must  be  applied  to 
the  actual  damages.  If  it  were  not  so,  the 
plaintiff  would  get  full  compensation  for 
damages  occasioned  by  himself.  The  rule 
ought  to  be  and  is  practically  mutual.  Malice 
and  provocation  in  the  defendant  are  pun- 
ished by  inflicting  damages  exceeding  the 
measure  of  compensation,  and  in  the  plaintiff 
by  giving  him  less  than  that  measure."  In 
Burke  v.  Melvin.  45  Conn.  243,  Park.  C.  J., 
held  that  the  whole  transaction  should  go  to 
the  jury.  "They  could  not  ascertain  what 
amount  of  damage  the  plaintiff  was  entitled 
to  receive  by  considering  a  part  of  the  trans- 
action. They  must  look  at  the  whole  of  it. 
They  must  ascertain  how  far  the  plaintiff 
was  in  fault,  if  in  fault  at  all,  and  how  far 
the  defendant,  and  give  damages  accordingly. 
Tlie  difference  between  a  provoked  and  an 
unprovoked  assault  is  obvious.  Tiie  latter 
would  deserve  punishment  beyond  the  actual 
damage,  while  the  damage  in  the  other  case 
would  be  attributable,  in  a  great  measure,  to 
the  misconduct  of  the  plaintiff  himself."  In 
Bartram  v.  Stone,  31  Conn.  159,  it  was  held 
that  in  an  action  for  assault  and  battery  the 
defendant  might  prove,  in  mitigation  of  dam- 
ages, that  the  plaintiff,  immediately  before 
the  assault,  charged  him  with  a  crime,  and 
tliat  his  assault  upon  the  plaintiff  was  oc- 
casioned by  "sudden  heat,"  produced  by  the 
plaintiff's  false  accusation.  See,  also,  Rich- 
ardson v.  Hine,  42  Conn.  206.  In  Xiff  v. 
Youmans,  86  iST.  Y.  324,  the  plaintiff  was 
upon  defendant's  premises  for  the  purpose 
of  committing  a  trespass,  and  the  defend- 
ant assaulted  him  to  prevent  the  act,  and 
the  only  question  was  whether  lie  used  un- 
necessary force.     Danfurtii,  J.,  said:    "It 


a:a 


MITIGATION   OF  DAMAGI<> 


still  remains  tliat  the  plaintiff  provoked  the 
trespass;  was  himself  guilty  of  the  act  vvhicli 
led  to  the  disturbance  of  the  public  peace.  Al- 
thougli  tills  provoealion  fails  to  justify  the  de- 
fendant, it  may  be  relied  upon  by  him  in  miti- 
gation even  of  compensatory  damages.  This 
doctrine  is  as  old  as  the  action  of  trespass, 
*  *  *  and  is  correlative  to  the  rule  which 
permits  circumstances  of  aggravation,  such 
as  time  and  place  of  an  assault,  or  insulting 
words,  or  other  circumstances  of  indignity 
and  contumely,  to  increase  them."  In  liobi- 
son  V.  liupert,  23  Pa.  iSt.  523,  the  same  rule 
is  adOjited,  the  court  sayinj.  •  "Where  there 
is  a  reasonable  excuse  for  tliv.  defendant  aris- 
ing from  the  provocation  or  faultof  tlie  plain- 
tiff, but  not  sullicient  entirely  to  justify  the 
act  done,  there  can  be  no  exemplary  damages, 
and  the  circumstances  of  mitigation  must  be 
applied  to  the  actual  damag  s."  In  Ireland 
V.  Elliott,  5  Iowa,  478,  the  court  said:  "The 
furthest  that  the  law  has  gone,  and  the  fur- 
thest that  it  can  go,  while  attempting  to 
maintain  a  rule,  is  to  permit  the  high  provt)ca- 
tion  of  language  to  be  shown  as  a  ))alliation 
for  the  acts  and  results  of  anger;  tliat  is,  in 
legal  phr.ise,  to  be  shown  ia  m.tig  ition  of 
damages."  In  Thrall  v.  Knapp.  17  Iowa, 
468,  the  court  said:  "Tiie  clear  distinction 
is  this:  Contemporaneous  provocations  of 
words  or  acts  are  admissible,  but  previous 
provccationsarenot.  And  the  test  is  whether 
•the  blood  has  had  time  to  cool.'  *  *  * 
The  law  affords  a  redress  for  every  injury. 
If  the  })laintilf  slandered  defendant's  daugh- 
ters, it  would  entirely  accord  with  his  natural 
feeling  to  chastise  him;  but  the  policy  of  the 
law  is  against  his  right  to  do  so,  especially 
after  time  for  reflection.  It  affords  a  peace- 
ful remedy.  On  the  other  hand,  the  law  so 
comi  1  tely  disfavors  violence,  and  so  jealous- 
ly guards  alike  individual  rights  and  the  pub- 
lic peace,  that,  'if  a  man  gives  another  a 
cufiE  on  the  ear,  though  it  costs  him  nothing, 
no,  not  so  much  as  a  little  diachylon,  yet  he 
shall  have  his  action.'  Per  Lord  Holt, 
Ashby  V.  Wiiite,  2  Ld.  Raym.  955."  The 
reasoning  of  the  court  seems  to  make  against 
his  rule  that  provocations  such  as  happen 
at  the  time  of  the  assault  may  be  received  in 
evidence  to  reduce  the  amount  of  the  plain- 
tiff's recovery. 

In  Morely  v.  Dunbar,  24  Wis.  183,  Dixon, 
C.  J.,  held  "that,  notwithstanding  what 
was  said  in  Birchard  v.  Booth,  4  Wis.  75, 
circumstances  of  provocation  attending  the 
transaction,  or  so  recent  as  to  constitute  a 
part  of  tiie  res  gestw,  though  not  sullieient 
entirely  to  justify  the  act  done,  may  consti- 
tute an  excuse  that  may  mitigate  the  actual 
damages;  and,  where  the  provocation  is 
great  and  calculated  to  excite  strong  feelings 
of  resentment,  may  reduce  them  to  a  sum 
which  is  merely  nominal."  But  in  Wilson 
V.  Young,  31  Wis.  574,  it  was  held  by  a  ma- 
joiity  of  the  court  that  provocation  could  go 
to  reduce  compensatory  damages  only  so  far 
as  these  should  be  given  for  injury  to  the  feel- 
ings; Dixon,  C.  J.,  however,  adhering  to 


the  rule  in  :Sb'ivly  v.  Dunl.ar  (hat  it  might  go- 
to reduce  all  coinjiensatory  damages.     l>ut 
in  Fenelon  v.  Butts,  53  Wis.  344,  10  N.  W. 
Bep.   501,   and   in    Corcoran   v.   Ilarran,  55 
Wis.  120,  12  N.  W.  Kep.  408,  it  was  clearly 
held  that  personal  abuse  of  the  assailant  by 
the   party   assaulted    may   be  considered  in 
mitigation   of  punitory,  but   not   of  actual 
damages,    which    include  those  allowed  for 
mental  and  bodily  suffering;  tliata  man  com- 
mencing an  assault  ant!   battery  under  such 
circumstances  of  provocation  is  liable  for  the- 
actual  damages  which  result  from  such  as- 
sault.    In  Donnelly  v.  Harris,  41  111.  126, 
the   court   instructed   the   jury   that  words 
spoken  might  be  considered  in  mitigation  of 
damages.     Walker,  C.  J.,  in  delivering  the 
opinion     >f  the   sujireme   court,    remarked: 
"Had  this  modification  been   limited  to  ex- 
emplary damages,  it  would  have  been  correct, 
but  it  may  well  have  been  understood  by  the 
jury  as  a]iplying  to  actual  damages,  and  they 
would  thus  have  been  misled.    To  allow  them 
the  elleet  to  mitigate  actual  damages  would 
be  virtually  to  allow  them  to  be  used  as  a  de- 
fense.    To  say  they  constitute  no  defense, 
and  then  to  say  they  may  mitigate  all  jut 
nominal  damages,  would,  we  think,  be  do- 
ing by  indirection  what  has  been  prohibited 
from  being  done  directly.     To  give  to  words^ 
this  effect;  would   be  to  abrogate,  in  effect, 
one  of  the  most  firmly  established  rules  of 
the  law."     See,  also,  Ogden  v.  Claycomb,  52 
111.  366.     In  Gizler  v.  Witzel,  82  111.  32J,  the 
court  said,  in  reference  to  the  charge  of  the 
court  below:  "The  third  instruction  tells  the- 
jury,  among  other  things,  that  the  plaintiff, 
in  order  to  recover,  should  have  been  guilty 
of  no  provocation.     This  is  error.  It  is  whol- 
ly immaterial  w  hat  language  he  may  have 
used,  so  far  as  the  right  to  maintain  an  ac- 
tion is  coneerned,  and  even  if  he  went  be- 
yond words  and  committed  a  technical  assault^ 
the  acts  of  the  defendant  must  still  be  limit- 
ed to  a  reasonable  self-defense."     In  Norris^ 
V.  Casel,  90  Ind.  143,  this  precise  question 
was  not  raised,  but  the  court  said,  in  refer- 
ence to  the  instructions  of  the  court  below, 
that  the  first  part  of  the  charge,  that  the 
provocation  by  mere   words,  however  grosa 
and  abusive,  cannot  justify  an  assault,  was 
correct,  and  that  a  person  who  makes  such 
words  a  pretext  for  committing  an  assault 
commits  thereby  not  only  a  mere  wrong,  but 
a  crime,  and  the  person  so  assaulted  is  not 
deprived  of  the  right  of  reasonable  self  de- 
fense, even  though  he   used   the   insulting^ 
language  to  provoke  the  assault  against  which 
he  defends  himself ;  but,  whatever  may  havo 
been  his  purpose  in  using  the  abusive  lan- 
guage, it  cannot  be  made  an  excuse  for  the 
assault.     Johnson  v.  McKee,  27  Mich.  471, 
was  a  case  very  similar  to  the  one  at  bar,  and 
was  given  to  tiie  jury  under  like  instruct'ons. 
The  supreme  court  said :    " In  regard  to  prov- 
ocation, the  court  charges,  in  effect,  that  if 
plaintiff   provoked   defendant,  and   the  as- 
sault was  the  result  of  that  provocation,  he 
could  recover  nothing  beyond  his  actual  dam« 


MITIGATION  OP  DAMAGES. 


455 


;\ges  and  outlays,  and  would  be  precluded 
from  claiming  any  damages  for  injured  feel- 
ings or  mental  anxiety.  In  other  words,  he 
would  be  cut  oft  from  all  the  aggravated 
damages  allowed  in  cases  of  willful  injury, 
and  sometimes  loosely  called  'exemplary 
damages.'  As  there  is  no  case  in  which  a 
party  who  is  damaged,  and  is  allowed  to  re- 
cover anything  substantial,  cannot  recover 
his  actual  damages,  the  rule  laid  down  by  tiie 
courc  was  certainly  quite  liberal  enongii,  and 
if  any  one  could  complain  it  was  not  the  de- 
fendant." The  court  said  in  Prentiss  v. 
Shaw,  56  Me.  436:  "We  understand  that 
rule  to  be  this:  A  party  shall  recover  as  a 
pecuniary  recompense  tiie  amount  of  money 
which  shall  be  a  remuneration,  as  near  as 
may  be,  for  the  actual,  tangible,  and  immedi- 
ate'result,  injury,  or  consequenceof  the  tres- 
pass to  his  person  or  property.  *  *  *  If 
the  assault  was  illegal  and  unjustified,  why 
is  not  the  plaintiff  in  such  case  entitled  to 
the  benefit  of  tlie  general  rule,  before  stated, 
that  a  party  guilty  of  an  illegal  trespass  on 
another's  person  or  property  must  pay  all 
the  (liimages  to  sucli  person  or  property,  di- 
lecly  and  actually  resulting  from  tlij  illegal 
act?  *  *  *  vViieretlie  trespass  or  injury 
is  upim  personal  or  I'eal  property,  it  would 
be  a  novelty  to  hear  a  claim  for  reduction  of 
the  actual'  injury  based  on  the  ground  of 
provocation  by  words.  If,  instead  of  the 
owner's  arm,  the  assailant  hal  broken  his 
horse's  leg,  *  *  *  must  not  the  defend- 
ant be  held  to  pay  the  full  value  of  the  horse 
thus  rendered  useless?"  The  learned  judge 
admits  that  the  law  has  sanctioned,  by  a 
long  series  of  decisions,  the  admission  of  evi- 
dence tending  to  show,  on  one  side,  aggra- 
vation, and  on  the  other  mitigation  of  the 
damages  claimed,  but  he  liolds  the  law  to  be 
tliat  mitigant  circumstances  can  only  be  set 
against  exemjilary  damages,  and  cannot  be 
used  to  reduce  the  actual  damages  directly 
resulting  from  the  defendant's  unlawful  act. 
In  a  learned  article  on  "Damages  in  Actions 
ex  Delicto,"  3  Amer.  Jur.  2b7,  it  is  said:  "If 
the  law  awards  damages  for  an  injury,  it 
would  seem  absurd  (even  without  resorting 
to  the  definition  of  damages)  to  say  that  they 
shall  be  for  a  part  only  of  the  injury."  "It 
is  a  reasonable  and  a  legal  principle  that  the 
compensation  should  be  equivalent  totlie  in- 
jury. There  may  be  some  occasional  depart- 
ures from  this  principle,  but  I  think  it  will 
be  found  safest  to  adhere  to  it  in  all  cases 
proper  for  a  legal  indemnification  in  the 
shape  of  damages."  Jacobs  v.  Hoover,  9 
Minn.  204,  (Gil.  189;)  Cnshman  v.  Waddell, 
Baldw.  57;  1  and  McBride  v.  McLaughlin,  5 
Watts,  375, — are  strong  authorities  in  sup- 
port of  tlie  rule  that  provocative  language 
used  by  the  plaintiff  at  the  time  of  the  bat- 
tery should  be  given  in  evidence  only  in  miti- 
gation of  exemplary  damages,  and  that  un- 


1  Fed.  Cas.  No.  3,.516. 


less  the  plaintiff  has  given  the  defendant  a 
provocation  amounting  in  law  to  a  justifica- 
tion he  is  entitled  to  receive  compensation 
for  the  actual  injury  sustained. 

If  provocative  words  may  mitigate,  it  fol- 
lows that  they  may  reduce  the  damages  to  a 
mere  nominal  sum,  and  thus  practically  jus- 
tify an  assault  and  battery.     But  why,  under 
this  rule,  may  they  not  fully  justify?     If,  in 
one  case,  the  provocation  is  so  great  that  the 
jury  may  award  only  nominal  damages,  why, 
in  another,  in  whicli  the  provocation  is  far 
greater,  should  they  not  be  permitted  to  ac- 
quit thedefendant,  and  thus  overturn  the  well- 
settled  rule  of  law  that  words  cannot  justify 
an  assault.  Ontheotherhand,if  wordscannot 
justify  they  siiould  not  mitigate.  .  A  defend- 
ant should  not  be  heard  to  say  that  the  plain- 
tiff was  first  in  the  wrong  by  abusing  him 
with  insulting  words,  and  therefore,  though 
he  struck  and  injured  the  plaintiff,  he  was 
only  partly  in  the   wrong,  and  should  pay 
only  part  of  the  actual  damages.     If  the  riglit 
of  the   plaintiff  to  recover  actual   damages 
were  in  any  degree  dependent  on  the  defend- 
ant's intent,  tlien  the  plaintiff's  i)rovocatioa 
to  the  defendant  to  commit  the  assault  upon 
him   would   be  legitimate  evidence  bearing 
upon   that  question;   but  it  is  not.     Even 
lunatics  and  idiots  are  liable  for  actual  dam- 
ages dune  by  them  to  the  property  or  person 
of  another,  and  certainly  a  person  in  the  full 
possession   of  his   faculties   should   be  held 
liable  for  his  actual  injuries  to  another,  un- 
less done  in  self-defense,  or  under  reasonable 
apprehension  tliat  the  plaintiff  was  about  to 
do  him  bodily  harm.     The  law  is  that  a  per- 
son is  liable  in  an  action  of  trespass  for  an 
assault  and   battery,   although  the  plaintiff 
made  the  first  assault,  if  the  defendant  used 
more  foice  than  was  necessary  for  his  pro- 
tection, and  tlie  symmetry  of  tlie  law  is  beiter 
preserved   by  holding   that  the  defendant's 
liability  for  actual  damages  begins  with  the 
beginning  of  liis  own  wrongful  act.     It  is 
certainly  in  accordance  with  what  this  court 
held  in  Rowland  v.  Day,  56  Vt.  318,  that 
"the  law  abhors  the  use  of  force  either  for 
attack  or  defense,  and  never  permits  its  use 
unnecessarily."    Exemplary  damages  are  not 
recoverable  as  matter  of  right,  but  as  was 
stated  by  Wheeler,  J.,  in  Earl  v.  Tupper, 
45  Vt.  275,  they  are  given  to  stamp  the  con- 
demnation of  the  jury  upon  tlie  acts  of  the 
defendant  on  account  of  their  malicious  or 
oppressive   character.      Boardman   v.  Gold- 
smith. 48  Vt.  403,  and  cases  cited;  Mayne, 
Dam.  58-65;  Voltz  v.  Blackmar,  64  N.  Y.  440. 
The  instructions  to  the  jury  upon  this  branch 
of  the  case  were  in  substantial  accordance 
with  the  law  as  above  stated.     As  exemplary 
damages  were  awardalile  in  the  discretion  of 
the  jury,  the  charge  was  also  correct  that  the 
influence  of  an  example  in  a  case  of  this  kind 
depended  on  the  character  and  standing  of 
the  parties  involved.     We  find  no  error  in  the 
charge,  and  the  judgment  is  afiirined. 


456 


MITIGATION   OF   DAMAGES. 


WAKD  V.  BIACKWOOD.i 

(41  Ark.  295.) 

Siiproiiie  Court  of  Arkansas.     Nov.  Term,  1883. 

Appeal  from  circuit  court,  Faulkner  county; 
J.  W.  Martin,  Judge- 

Massey  sued  ^^'ard  in  an  action  ex  delicto. 
His  complaint  contained  two  paragraphs — 
one  for  assault  and  battery,  and  the  other  for 
malicious  prosecution  in  having  him  arrested. 
After  the  issues  had  been  made  up,  the  plain- 
tiff died.  Mr.  Blackwood  qualified  as  his 
administrator,  and  the  action  was  revived  in 
his  name  and  proceeded  to  a  trial,  which  re- 
sulted in  a  verdict  against  Ward  for  two 
thousand  dollars  damages.  Ward  excepted 
to  the  revivor  in  the  name  of  the  personal 
representative,  and  afterwards  moved  the 
court  to  arrest  the  judgment  and  to  grant 
him  a  new  trial  for  this  alleged  error.  Re- 
versed. 

R.  C.  Newton  and  Henderson  &  Caruth.  for 
appellant.  W.  L.  Terry  and  Blackwood  & 
Williams,  for  appellee. 

S^^IITH,  J.      ********* 

The  court  gave  the  following  direction  to 
the  .jury:  "If  the  assault  was  committed 
without  fault  on  the  part  of  the  plaintiff  in 
a  wanton  and  willful  manner,  and  under  cir- 
cumstances of  outrage,  cruelty  and  oppres- 
sion, or  with  malice,  they  will  be  warranted 
in  finding  vindictive  or  exemplary  damages 
by  way  of  punishment  and  for  public  ex- 
ample." 

And  it  refused  to  give  this:  "If  you  find 
from  the  evidence  that  Massey  was  employed 
by  or  for  Ward,  for  the  purpose  of  guarding 
convicts,  and  that  some  of  them  escaped 
through  the  carelessness  or  negligence  of  said 
Massey,  or  through  his  connivance,  and  that 
Ward  believed  he  had  so  acted,  although  said 
belief  or  opinion  will  not  justify  the  assault, 
it  may  be  considered  in  mitigation  of  dam- 
ages." 

The  action  of  the  court  in  these  particulars 
was  excepted  to,  and  was  urged  in  support 
of  the  motion  for  a  new  trial.  And  it  was 
also  claimed  that  the  damages  were  excess- 
ive. The  defendant  was  the  lessee  of  the 
penitentiary.  The  plaintiff  was  employed  as 
a  guard,  and  was  especially  instructed  to  be 
vigilant  and  never  permit  a  convict  to  come 
nearer  him  than  twenty-five  yards.  He  was 
not  a  man  of  strong  constitution  and  was  in 
rather  feeble  health.  He  seems  to  have  fall- 
en asleep  on  his  post  about  ten  o'clock  in  the 
morning,  and  thi-oe  convicts,  taking  advantage 
of  his  condition,  disarmed  him  and  made 
good  their  escape.     They  were  fired  upon  by 

1  Portion  of  opinion  omitted. 


the  other  guards,  and  in  the  midst  of  the  com- 
motion the  defendant  came  into  the  yard, 
and  being  enraged  at  the  escape  of  the  con- 
victs, seized  a  clapboard,  and  struck  the  plain- 
tiff three  or  four  times  over  the  shoulders  and 
back. 

This  does  not  impress  us  as  a  proper  case 
for  the  infliction  of  exemplary  damages  or 
smart  money.  An  employer  who,  in  a  fit  of 
passion,  assaults  his  servant  for  a  neglect  of 
duty,  thereby  commits  a  breach  of  the  peace 
and  an  actionable  wrong.  But  if,  making 
due  allowance  for  the  infirmities  of  human 
temper,  the  defendant  has  a  reasonable  ex- 
cuse, arising  from  the  provocation  or  fault 
of  the  plaintiff,  but  not  sufficient  to  justify 
entirely  the  act  done,  then  damages  ought 
not  to  be  assessed  by  way  of  punishment  and 
the  circumstances  of  mitigation  should  be 
considered. 

For  the  public  offense,  Massey  swore  out  a 
warrant,  upon  which  Ward  was  arrested,  ar- 
raigned, pleaded  guilty,  and  fined  $10  and 
costs  and  paid  the  same.  For  the  private  In- 
jury this  action  is  prosecuted.  And  the  ele- 
ments of  damages  are,  the  personal  indignity 
involved  in  the  assault,  the  plaintiff's  bodily 
pain,  and  suffering,  loss  of  time  and  labor, 
and  diminished  capacity  to  work  from  the 
date  of  the  assault  to  Massey's  death,  and 
the  expenses  of  medical  and  siu'gical  attend- 
ance during  his  illness  consequent  upon  the 
injuries  received. 

Cushman  v.  Waddell,  1  Baldw.  59,  Fed.  Cas. 
No.  .3,510.  was  an  action  by  a  schoolmaster 
against  a  parent  for  a  severe  beating.  The 
plaintilf  had  punished  one  of  his  pupils  for 
some  offense.  The  father  went  to  the  plain- 
tiff's boarding-house,  attacked  and  beat  him 
savagelj',  accompanied  by  very  intemperate 
and  vindictive  language  and  other  circum- 
stances of  aggravation.  The  court  held  that 
no  provocation  could  excuse  the  defendant 
from  making  compensation  for  all  the  injury 
the  plaintiff  had  suffered  by  the  unlawful  at- 
tack. But  if  the  jury  were  satisfied  that, 
without  any  previous  malice  towards  the 
plaintiff,  or  any  deliberate  design  to  injure 
him  in  person  or  in  the  estimation  of  the  pub- 
lic, the  defendant  acted  in  the  heat  of  pas- 
sion, caused  by  the  appearance  and  accoun' 
of  his  son,  it  was  a  circumstance  which  ougiit 
to  operate  powerfully  to  reduce  the  damages 
to  such  as  were  compensatory. 

In  the  case  under  consideration,  there  was 
no  evidence  of  previous  malice,  nor  of  delib- 
erate cruelty,  only  of  hot  blood  and  a  cer- 
tain recklessness.  Ward  had  never  seen 
Massey  before.  And  Massey  was  very  far 
from  being  free  from  fault. 

For  the  errors  above  indicated,  the  judg- 
ment is  reversed,  and  a  new  trial  is  awarded. 


MITIGATION   OF   DAMAGES. 


457 


SICKRA  V.  SMALL  et  al. 

(33  Atl.  9,  87  Mo.  493.) 

Supreme  Judicial  Court  of  ^Slaine.     May  4, 
1895. 

Exceptions  from  supreme  judicial  court, 
Tork  county. 

Action  on  the  case  for  libel  by  Raymond 
Sickra  against  Josephine  W.  Small  and  an- 
other. Plaintiff  had  judgment  for  nominal 
<lamages  only,  and  brings  exceptions.  Excep- 
tions sustained. 

G.  F.  Haley,  for  plaintiff.  E.  J.  Cram,  for 
•lefendants. 

WHITEHOUSB,  J.  This  was  an  action  of 
libel  for  defamatory  matter,  publi  hed  in  a 
newspaper,  representing  that  the  plaintiff 
and  Mrs.  Blake  bad  "eloped,"  and  were  liv- 
ing together  in  adultery. 

At  the  trial,  evidence  was  offered  by  the 
•defendant,  and  admitted  by  the  court,  sub- 
ject to  the  plaintiff's  right  of  exception,  that 
the  plaintiff's  "general  character"  was  bad 
in  the  community  in  which  he  lived. 

1.  It  was  not  questioned  by  the  plaintiff 
that,  in  actions  for  libel  or  slander,  the  char- 
xicter  of  the  plaintiff  may  be  in  issue  upon  the 
-question  of  damages;  but  it  is  contended  that 
the  inquiry  should  be  restricted  to  the  plain- 
tiff's general  reputation  in  respect  to  that 
trait  of  character  involved  in  the  defamatory 
charge. 

AVhile  there  has  been  some  contrariety  of 
opinion,  or  at  least  of  expression,  upon  this 
question,  it  must  now  be  regarded  as  settled, 
both  upon  principle  and  the  great  weight  of 
authority,  that,  in  this  class  of  cases,  the 
defendant  may  introduce  evidence,  in  mitiga- 
tion of  damages,  that  the  plaintift"s  general 
reputation,  as  a  man  of  moral  worth,  is  bad, 
iind  may  also  show  that  his  general  reputa- 
tion is  bad  with  respect  to  that  feature  of 
<.'haracter  covered  by  the  defamation  in  ques- 
tion; and,  as  to  the  admission  of  such  evi- 
dence, it  is  immaterial  whether  the  defendant 
has  simply  pleaded  the  general  issue,  or  has 
pleaded  a  justification  as  well  as  the  general 
issue.  Stone  v.  Varney,  7  Mete.  (Mass.)  86; 
Leonard  v.  Allen,  11  Cush.  241;  Bodwell  v. 
Swan,  3  Pick.  376;  Clark  v.  Brown,  116 
Ma.ss.  .505;  Root  v.  King,  7  Cow.  613;  Lamos 
V.  Snell,  6  N.  H.  413;  Bridgman  v.  Hopkins, 
34  Vt.  533;  Eastland  v.  Caldwell,  2  Bibb,  21; 
Powers  v.  Cary,  64  Me.  1;  Odgers,  Sland. 
&  L.  3(»4;  Suth.  Dam.  679;  Best,  Ev,  256;  1 
Whart.  Ev.  53;  2  Starkie,  Sland.  87;  1  Greenl. 
Ev.  §  55;    2  Greenl.  Ev.  §  275. 

In  Stone  v.  Varney,  supra,  the  libel  imputed 
to  the  plaintiff  "heartless  cruelty  toward  his 
child,"  and  it  was  held  competent  for  the  de- 
fendant to  introduce  evidence,  in  mitigation 
of  damages,  that  "the  general  reputation  of 
the  plaintiff  in  the  community,  as  a  man  of 
moral  worth,"  was  bad.  After  a  careful  ex- 
amination  of   the    authorities    touching    the 


question,  the  court  say,  in  the  opinion:  "This 
review  of  the  adjudicated  cases,  and  particu- 
larly the  decisions  in  this  commonwealth  and 
in  the  state  of  New  York,  seems  necessarily  to 
lead  to  the  conclusion  that  evidence  of  gen- 
eral bad  character  is  admissible  in  mitigation 
of  damages.  *  *  ♦  It  cannot  be  just  that 
a  man  of  infamous  character  should,  for  the 
same  libelous  matter,  be  entitled  to  equal 
damages  with  the  man  of  unblemished  repu- 
tation; yet  such  must  be  the  result,  imless 
character  be  a  proper  subject  of  evidence  be- 
fore a  jury.  Lord  Ellenborough,  in  1  Maule 
&  S.  286,  says,  'Certainly  a  person  of  dis- 
paraged fame  is  not  entitled  to  the  same 
measau'e  of  damages  with  one  Avhose  charac- 
ter is  unblemished,  and  it  is  competent  to 
show  that  by  evidence.'  " 

In  Leonard  v.  Allen,  supra,  the  plaintiff 
was  charged  with  maliciously  burning  a 
schoolhouse,  and  it  was  held  that,  in  the  in- 
troduction of  evidence  to  impeach  the  char- 
acter of  the  plaintiff,  in  mitigation  of  dam- 
ages, the  inquiries  should  relate  either  to  the 
general  character  of  the  plaintiff'  for  integrity 
and  moral  worth,  or  to  his  reputation  in  re- 
gard to  conduct  similar  in  character  to  the 
offense  with  which  the  defendant  had  char- 
ged  him. 

In  the  recent  case  of  Clark  v.  Brown,  116 
Mass.  505,  the  plaintiff  was  charged  with 
larceny.  The  trial  court  admitted  evidence 
that  the  plaintift''s  reputation  for  honesty  and 
integrity  was  bad,  and  excluded  evidence  that 
his  reputation  in  respect  to  thieving  was  bad. 
But  the  full  court  held  the  exclusion  of  the 
latter  evidence  to  be  error,  and  reaffirmed  the 
rule,  laid  down  in  Stone  v.  Varney  and  Leon- 
nard  v.  Allen,  supra,  that  it  was  competent 
for  the  defendant  to  prove,  in  mitigation  of 
damages,  that  the  plaintiff's  general  reputa- 
tion was  bad,  and  that  it  was  also  bad  in 
respect  to  the  charges  involved  in  the  al- 
leged slander. 

In  Lamos  v.  Snell,  6  N.  H.  413,  the  defend- 
ant's right  to  inquire  into  the  plaintiff's  "gen- 
eral character  as  a  virtuous  and  honest  man, 
or  otherwise,"  was  brought  directly  in  ques- 
tion; and  it  was  determined  that  the  defend- 
ant was  "not  confined  to  evidence  of  charac- 
ter founded  upon  matters  of  the  same  nature 
as  that  specified  in  the  charge,  but  may  give 
in  evidence  the  general  bad  character  of  the 
plaintiff  *  *  *  in  mitigation  of  damages, 
and  for  this  inquiry  the  plaintiff  must  stand 
prepared." 

In  Eastland  v.  Caldwell,  supra,  the  court 
say,  in  the  opinion:  "In  the  estimation  of 
damages  the  jmy  must  take  into  considera- 
tion the  general  character  of  the  plaintiff. 
*  *  *  In  this  case,  the  defendant's  counsel 
was  permitted  by  the  court  to  inquire  into  the 
plaintiff's  general  character  in  relation  to  the 
facts  in  issue;  but  we  are  of  opinion  he  ou^ht 
to  have  been  pei-mitted  to  niquire  into  his 
general  moral  character,  without  re'ation  to 
any  particular  species  of  immorality;  for  a 
man  who  is  habitually  addicted  to  every  vice, 


458 


MITIGATION    OF   DAMAGES. 


except  the  one  witli  which  he  is  chaij^ed,  ia 
not  entitled  to  as  heavy  damages  as  one  pos- 
sessing a  fair  moral  character.  The  jury, 
who  possess  a  large  and  almost  unboxmded 
discretion  upon  subjects  of  this  kind,  could 
liave  but  veiy  inadequate  data  for  the  quan- 
tum of  damages  if  tlicy  are  pennitted  only  to 
laiow  the  plaintiff's  general  character  in  re- 
lation to  the  facts  put  in  issue." 

With  respect  to  the  form  of  the  inquiry, 
it  is  said  to  be  an  inflexible  rule  of  law  that 
the  only  admissible  evidence  of  a  man's  char- 
acter, or  actual  nature  and  disposition,  is  his 
general  reputation  in  the  community  where 
lie  resides.  Chamb.  Best,  Ev.  2.j(>,  note.  It 
would  seem,  therefore,  that,  in  order  to  avoid 
eliciting  an  expression  of  the  witness'  opin- 
ion respecting  the  plaintiff's  character,  the 
ayproj)riate  form  of  interrogatory  would  be 
an  inquiry  calling  directly  for  his  knowledge 
of  the  plaintiff's  general  reputation  in  the 
comuumity,  either  as  a  man  of  moral  worth, 
without  restriction,  or  in  the  particular  rela- 
tion covered  by  the  libel  or  slander. 

2.  But  the  plaintiff  also  has  exceptions  to 
the  following  instruction  in  the  charge  of  tha 
presiding  justice:  "I  am  requested  by  the 
counsel  for  the  defendant  to  instruct  you 
that,  if  the  plaintiff's  conduct  was  such  as  to 
excite  the  defendant's  suspicions,  it  should  be 
considered  in  mitigation  of  damages,  the 
plaintiff  alleging  that  he  had  never  been  sus- 
pected of  the  crime  alleged.  I  give  you  that 
instruction." 

This  request  was  doubtless  suggested  by 
the  note  to  section  275,  2  Greenl.  Ev.,  which 
appears  to  be  based  on  the  old  case  of  Earl  of 


Leicester  v.  Walter,  2  Camp.  251.  But  that 
case  has  long  ceased  to  be  recognized  as  au- 
thority for  anything  more  than  the  admission 
of  evidence  of  the  plaiutilf's  general  reputa- 
tion. A  similar  intimation  is  found  in  Lar- 
ned  V.  Buttinton,  3  Mass.  353,  but  in  Alder- 
men V.  French,  1  Pick.  18,  this  dictum  is  de- 
clared to  be  unsupported  by  any  authority. 
Again,  in  the  later  case  of  AVatson  v.  Moore, 
2  Cush.  134,  it  was  held  incompetent  for  the 
defendant,  in  an  action  of  slander,  to  prove,  in 
mitigation  of  damages,  "circumstances  whicb 
excited  his  suspicion,  and  furnished  reasonable 
cause  for  belief  on  his  part,  that  the  words 
spoken  were  true."  The  obvious  objection  to  it 
is  that  the  damages  in  an  action  of  slander  are 
to  be  "measured  by  the  injury  caused  by  the 
words  spoken,  and  not  by  the  moral  culpa- 
bility of  the  speaker."  We  have  seen  that 
the  defendant  is  permitted  to  prove  that  the- 
plaintiff's  general  reputation  is  bad,  because 
this  evidence  has  a  legitimate  tendency  ta 
show  that  the  injury  is  small;  but  the  evi- 
dence of  general  report  that  the  plaintiff  is 
guilty  of  the  imputed  offense  is  inadmissible- 
for  the  purpose  of  reducing  damages.  Powers 
V.  Cary,  supra;  Mapes  v.  Weeks,  4  Wend. 
059;  Stone  v.  Varney,  supra.  A  foitijri,. 
evidence  of  th.e  defendant's  suspicions,  how^- 
ever  excited,  cannot  be  received  for  such. 
a  purpose.    Watson  v.  T\Ioore,  supra. 

This  instruction  to  the  jury  must,  there- 
fore, be  held  erroneous;  and  for  this  reasoa 
the  entry  must  be: 

Exceptions  sustained. 

HASKELL,  J.,  concurred  in  the  result. 


MITIGATION   OF   DAMAGES. 


459 


CALLAHAN  v.  INGRAM. 

(26  S.  W.  1020,  122  Mo.  355.) 

Suiirenic  Court  of  Missouri,  Division  No.  1. 
May   28,    1894. 

,  Appeal  from  circuit  court,  Jackson  county; 
R.  H.  Field,  Judge.  i 

Action  by  Thomas  F.  Callahan  against  D.   \ 
R.  Ingram  for  slander.     Judgment  for  plain- 
tiff, and  defendant  appeals.     Reversed. 

Thompson  &  Wilcox,  for  appellant.     Har- 
mon Bell  and  Wash  Adams,  for  respondent. 

MACFARLANB,    J.     Action    for    slander. 
The  petition  charged  that  on  the  4th  of  No- 
vember,   1889,    plaintiff    was    appointed    su- 
perintendent of  sti-eets  of  Kansas  City,  which 
was  an  office  of  honor  and  trust,  under  the 
charter   and   ordinances   of  said   city;    that 
on  said  date,  at  a  meeting  of  the  common 
council  of  said  city,  in  the  presence  of  divers 
persons    (naming    other     members     of   said 
council,    and    the    clerk   thereof,    and   other 
persons),   then    present,    defendant   "falsely 
and  maliciously  spoke  and  published  of  and 
concerning  the  plaintiff  the  false  and  mali- 
cious words  foHowing,  to  wit:    'Now,  I  want 
to  say  something,  and  I  want  the  reporters 
to   get   it.     The   superintendent   of    streets— 
this   Callahan— is  a  downright  thief,  and  I 
can  prove  it.'  "     The  petition  further  charged 
that  at  the  time  the  words  were  spoken  there 
was   not   then   pending  before   said   council 
any  ordinance,  motion,  resolution,  or  report 
referring  to   plaintiff,  or  the   office  so  held 
by  him;    "that  defendant  meant  and  intend- 
ed, by  the  use  of  said  words  so  spoken  and 
published     by    defendant    as     aforesaid,    to 
charge  plaintiff  with  being  guilty  of  willful, 
corrupt,    and    malicious    oppression,    partial- 
ity,   misconduct,    or   abuse    of    authority    in 
his  official  capacity,  as  such  superintendmit 
of  streets,  or  under  color  of  his  said  office. 
Plaintiff    further    states    that    at    the    time 
said   words   were   so   spoken  by    defendant 
the   defendant   well   knew   the   same  to   be 
false,  and  said  ^ords  were  so  spoken  by  de- 
fendant wantonly  and  maliciously,  and  with 
the  intention  of  injuring  plaintiff;    that  the 
words  spoken  were  false,  and  plaintiff  was 
greatly  injured  in  said  office,  and  in  his  feel- 
ings, good  name,  and  reputation."     The  an- 
swer was   a    general   denial,   and    a   special 
plea  as  follows:    "For  a  second  and  further 
answer   to   plaintiff's  amended   petition,    de- 
fendant says  that,  at  the  time  the  supposed 
defamatory  words   were   spoken  by  defend- 
ant, the  lower  house  of  the  connuon  council 
of  Kansas  City,  being  regularly  in  session, 
were  discussing  the  office  of  superintendent 
of  streets,  and  the  actions  and  methods  of 
Superintendent    Callahan,    the    plaintiff.     It 
had  been  stated  by  dift'ereut  members  of  the 
council  that  he  was  an   inefficient   and   in- 
competent  officer,   and   had   been   guilty   of 
misconduct,  oppression,  partiality,  and  abuse 
of  authority,    in  his   official   capacity.     Dur- 


ing this  discussion  the  defendant,  in  the  dis- 
charge of  his  duty  as  a  member  of  said  com- 
mon coimcil,    in  discussing  the   official  con- 
duct of  plaintiff,   stated  that  the  resolution 
previously  introduced  by  him  to  investigate 
the  city  officials  was  aimed  at  Superintend- 
ent   Callahan;     that    said    Callahan,    in    his 
official  position,  as  inspector  of  curbing,  had 
condemned   curbing  that   was   being  put  in 
by  one  party,  and  permitted  another  man,  a 
favorite   of    said    superintendent,    to   put   in 
the  same  stone,   entailing  loss  on   the   first 
man,   and   bestowing   official  favors   on   the 
second;    that  he  had  also  given  acceptances 
for  curbing  put  in  by  one  man  to    another, 
knowing  at  the  time  he  gave  the  acceptances 
that  the  person  to  whom  he  gave  them  had 
not  done  the  work,  and  was  not  entitled  to 
them,  thus  enabling  the  second  man  to  col- 
lect  pay   for   work   done  by   the   first,    and 
defrauding  one  man  to  put  money  into  the 
pocket  of  a  favorite  of  said  Callahan.     De- 
fendant,   in    stigmatizing    such    conduct    as 
dishonorable     and     dishonest,     applied     the 
term   'downright  thief,'  to  said  superintend- 
ent.   Defendant  saj^s  that  this  statement  was 
made  in  the  discharge  of  his  official  duty,  as 
above  set  forth,   and   without  malice  or   ill 
will  to  plaintiff,  and  that  he  had  good  reason 
to  believe,  and  did  believe,   that  the  state- 
ments he  made  were  true,  and  that  the  op- 
probrious epithet  he  used  was  a  just  and  fair 
pharacterization  of  such  official  misconduct. 
Defendant   further   states   that   the   circum- 
stances above  referred  to  are  as  follows:    In 
June,  1887,  John  Henry  had  a  private  con- 
ti-act  to  put  in  about  82  feet  of  curbing  foi- 
F.    J.    Baird    on   Twentieth   street,    between 
Southwest   boulevard   and   Broadway;    that 
said  Henry  did  said  work,  and  put  in  said 
curbing,  and  said  Callahan,  though  knowing 
that  said  Henry  had  done  said  work,  issued 
acceptances  to  one  Bashford;    that,   in  the 
fall   of    1887,   Johnson   and   Tompkins    were 
putting  in  curbing  on   Sixteenth  street,   be- 
tween  Penn  and  Broadway,   and  that  they 
got  the  curbnig  of  Richard  Cummins;    that 
said  Callahan  condemned  some  of  said  stone, 
and  said  Cummins  sold  it  to  one  Bashford, 
and  Callahan  allowed  him  to  use  it  for  curb- 
ing on  another   street."     The   reply   was  a 
general  denial. 

The  evidence  showed  that  plaintiff  was  on 
the  4th  day  of  November,  1889,  superintend- 
ent of  streets,  and  defendant  was  a  member 
of  the  city  council;    that  defendant  had  pre- 
;  viously  held  the  office  of  inspector  of  curbing 
and  sidewalk  construction;    that,  some  time 
I  previously,  defendant  had  introduced  in  the 
lower  house  of  the  council,  of  which  he  was 
a  member,  a  resolution  bearing  on  plaintift"s 
official  conduct,  which  had  passed  that  house, 
and  gone  to  the  upper  house,  where  it  then 
remained  undisposed  of.     On  this  occasion  a 
I  member  raised  a  question  of  privilege,  and  a 
j  general  discussion  and  criticism  of  plaintiff's 
official  conduct  followed,  in  which  detendant 
spoke  the  words  attributed  to  him,   making 


460 


MITIGATION   OP  DAMAGES. 


i^pocial  rcrorcnce  in  what  lie  said  to  the  al- 
Ic^^ed  misconduct  set  np  in  his  special  plea. 
At  the  time  no  resolution,  ordinance,  motion, 
or  report  was  before  that  house,  respecting 
plaintiff,  or  his  official  conduct.  On  the  trial, 
defendant  offered  to  prove  that  those  pres- 
ent, Avho  heard  defendant's  language,  luider- 
stood  it  to  refer  to  official  misconduct  of 
plaintiff  in  the  matters  referred  to.  He  also 
ottered  to  prove  the  reasons  and  motives 
which  induced  him  to  speak  of  plaintiff  as  he 
did.  These  offers  Avere  refused  by  the  court. 
Defendant,  in  support  of  his  special  plea,  un- 
dertook to  prove  that,  while  plaintiff  was  in- 
spector of  curbing,  he  issued  to  one  party  a 
certiticate  for  curbing  put  in  by  another. 
Under  the  ordinances,  the  engineer  was  re- 
quired, after  completion  of  work  by  the  own- 
er of  the  property  charged  therewith,  to 
grant  a  certiticate  of  the  fact,  which,  when 
tiled,  exonerated  the  owner  from  liability  to 
pay  for  the  improvement.  Defendant  of- 
fered in  evidence  a  certificate  of  that  charac- 
ter, which  sliowed  that  the  measurement  had 
been  made  by  plaintiff  as  inspector,  but  with- 
out designating  who  had  done  the  work. 
The  court  refused  to  permit  this  certificate 
to  be  read  in  evidence. 

At  request  of  plaintiff,  the  court  gave  the 
jm\v  the  following  instiiictions:  "(1)  The  jury 
are  instructed  that  if  they  believe  from  the 
evidence  that  on  November  4,  18S9,  the  plain- 
tiff was  acting  as  superintendent  of  streets 
of  Kansas  City,  and  that  defendant,  Ingram, 
was  a  member  of  the  common  council  of 
Kansas  City,  and  at  a  meeting  of  the  lower 
house  of  the  common  council,  and  in  the 
presence  of  various  people,  the  defendant 
maliciou.sly  used  the  following  language  of 
and  concerning  the  plaintiff  in  his  character 
of  superintendent  of  streets,  namely:  'Now, 
I  want  to  say  something,  and  I  want  the  re- 
porters to  get  it.  This  superintendent  of 
streets— this  Callahan— is  a  downright  thief, 
and  I  can  prove  it,' — and  if  the  jury  further 
believes  that  said  language  was  false  and 
untrue,  then  the  said  jury  should  find  for  the 
plaintiff.  (2)  Malice  does  not  consist  alone 
in  personal  spite  or  ill  will,  but  it  exists,  in 
law,  wherever  a  wrongful  act  is  intentionally 
done  without  just  cause  or  excuse.  (3)  The 
court  instiiicts  the  jury  that  the  defendant  is 
not  protected  in  this  action  fi'om  liability  for 
the  words  used  by  him  against  plaintiff  by 
reason  of  having  uttered  them  in  the  cham- 
ber of  the  lower  house  of  the  common  council 
of  Kansas  City.  (4)  The  jm-y  are  instructed 
that,  in  making  their  verdict,  thej'  may  take 
into  consideration  all  the  facts  and  circum- 
stances as  detailed  by  the  witnesses;  and  if 
the  jury  find  for  plaintiff,  in  estimating  the 
damages  which  they  may  think  plaintiff  has 
sustained,  the  jury  may  take  into  considera- 
tion, and  allow  the  plaintiff  for,  the  mortifica- 
tion to  his  feelings,  suffered  from  the  act  of 
defendant  complained  of,  and  may  add 
thereto,  as  punitive  damages,  such  amount  as 
will    adequately    punish    the    defendant    for 


such  act,  and  serve  as  a  warning  to  prevent 
others  from  being  guilty  of  a  like  act."  The 
court  gave  one  instruction  for  the  defendant, 
as  follows:  "(11)  The  jury  are  instructed  that 
if  they  believe  from  the  evidence  that  the 
i-emarks  of  defendant  at  the  council  meet- 
ing on  the  4th  of  November,  1880,  in  refer- 
ence to  plaintiff,  taken  as  a  whole,  in  their 
import,  referred  to  him  as  inspector  of  curb- 
ing, and  not  as  superintendent  of  streets,  then 
your  verdict  should  be  for  the  defendant." 
The  judgment  was  for  plaintiff,  for  .'i^."'»,0()t'), 
and  defendant  appealed. 

1.  Defendant  admitted  speaking  the  words 
Imputed  to  him,  but  undertook  to  justify 
what  he  said  on  the  ground  that  he  was  at 
the  time  a  member  of  the  city  council  of 
Kansas  City,  which  was  in  regular  session. 
and  had  under  discussion  the  office  of  super- 
intendent of  streets,  and  the  official  action 
and  methods  of  plaintiff,  who  was  then  such 
superintendent;  that,  in  the  discharge  of  his 
official  duty,  he  had  the  right  and  privilege 
to  discuss  and  characterize  the  official  mis- 
conduct of  plaintiff".  There  can  be  no  doubt, 
on  proper  occasion,  members  of  the  city  coun- 
cil would  be  protected  from  "responsibility 
for  whatever  is  said  by  them,  which  is  perti- 
nent to  any  inquiry  pending  or  proposed  be- 
fore them,"  but  no  further.  They  would  be- 
come "accomitable  when  they  wander  from 
the  subject  in  hand  to  assail  others."  Cool- 
ey.  Torts,  214;  Neeb  v.  Hope,  111  Pa.  St.  152. 
2  Atl.  568.  Members  of  the  city  council,  in 
particular,  and  all  citizens,  in  general,  ai'e 
interested  in  the  proper,  honest,  and  efficient 
administration  of  the  public  service,  and 
have  the  right,  in  the  public  interest,  to  criti- 
cize public  officers,  and  to  prefer  charges  foi" 
malfeasance  or  neglect  of  duty,  if  done  in 
good  faith,  upon  probable  and  reasonable 
gi'ounds;  but  the  law  does  not  permit  any 
person  to  slander  another,  on  any  occasion  or 
under  any  circumstances,  when  he  is  not 
protected  by  absolute  privilege.  It  is  charged 
in  the  petition,  and  conclusively  shown  by 
the  evidence,  that  when  the  objectionable 
words  were  spoken  there  was  no  inquiiy 
pending  or  proposed  before  that  house  of  the 
council,  which  would  make  the  occasion  one 
of  privilege,  beyond  that  which  is  accorded 
to  every  citizen.  Defendant  was  not  priv- 
ileged to  falsely  characterize  the  plaintiff  as 
a  "thief,"  though  the  term  was  intended  to 
apply  to  his  official  conduct.  Whether  the 
occasion  is  such  as  to  make  the  communica- 
tion one  of  privilege  is  always  a  question  of 
law  for  the  coiu't,  where  there  is  no  dispute 
as  to  the  circumstances  under  wnich  it  was 
made,  and  the  court  did  not  err  in  holding 
that  the  language  applied  to  defendant  was 
not  privileged.  Newell,  Defam.  p.  391,  §  9; 
Odger,  Sland.  &  L.  183;  Am.  &  Eng.  Enc. 
Law,  40G.  The  words  spoken  were  action- 
able in  themselves,  and,  being  admitted  by 
the  answer,  the  court  properly  instructed  the 
jury  that  if  they  were  false  the  defendant 
was  liable. 


MITIGATION   OF  DAMAGES. 


461 


2.  Complaint  is  made  of  the  first  instruction 
given  for  plaintiff,  in  that  it  is  an  abandon 
ment  of  the  meaning  plaintiff,  in  his  peti- 
tion, by  innuendo,  phicod  upon  the  words 
spoken.  The  innuendo  eliarges  that  defend- 
ant intended  and  meant,  by  the  language 
used,  to  charge  plaintiff  with  oppression  and 
partiality  in  the  discharge  of  his  otficial  du- 
ties as  superintendent  of  streets;  and  the 
claim  is  that  he  should  be  held  to  the  in- 
terpretation he  himself  placed  upon  them, 
while  the  instruction  autliorized  a  recovery 
on  proof  of  the  falsity  of  the  words  admit- 
tedly spoken.  The  innuendo  is  intended  to 
define  the  defamatory  meaning  which  the 
plaintiff  places  upon  the  words  used.  In 
case  the  defamatory  meaning  is  apparent 
from  the  language  charged,  there  is  no  ne- 
cessity for  an  innuendo  at  all.  The  pur- 
pose of  the  innuendo,  and  its  effect  upon  the 
party  pleading  it,  is  thus  expressed  by  Town- 
send  in  his  work  on  Slander  (section  838): 
"Where  language  is  ambiguous,  and  is  as 
susceptible  of  a  harmless  as  of  an  inju- 
rious meaning,  it  is  the  function  of  an  innu- 
endo to  point  out  the  meaning  which  the 
plaintiff  claims  to  be  the  true  meaning,  and 
the  meaning  upon  which  he  relies  to  sustain 
his  action.  This  applies  whether  the  am- 
bigiiity  be  patent  or  latent,  and  whether  or 
not  there  are  any  facts  alleged  as  induce- 
ment. By  this  means  the  defendant  is  in- 
formed of  the  precise  charge  he  has  to  meet, 
and  to  deny  or  justify.  But  the  plaintiff  is 
subjected  to  the  risk  that  if  he  claims  for 
the  language  a  meaning  which  is  not  the 
true  one,  or  one  which  he  is  unable  to  make 
out  satisfactorily,  he  may  be  defeated  on 
the  ground  of  variance  or  failure  of  proof; 
for  when  the  plaintitf,  by  his  innuendo,  puts 
a  meaning  on  tlie  language  pulilished,  he  is 
bound  by  it,  although  that  course  may  de- 
stroy his  right  to  maintain  the  action."  To 
the  same  effect,  see  Starkie,  Sland.  &  L.  § 
446;  Newell,  Defam.  p.  029,  §  39;  Odger, 
Sland.  &  L.  100.  It  will  be  seen  that  the 
office  of  the  innuendo  is  to  set  a  meaning 
upon  words  or  langaiage  which  are  of  doubt- 
ful or  ambiguous  import,  and,  taken  alone, 
are  not  actionable;  and  it  follows  that,  in 
case  the  defamatory  meaning  is  apparent 
from  the  words  used,  au  innuendo  is  unnec- 
(>ssary.  Its  use  is  only  nece.-5sary  in  order 
to  bring  out  the  latent,  injurious  meaning  of 
the  words  employed.  When  used  for  this 
legitimate  and  necessary  purpose,  the  plain- 
tiff will  be  bound  to  abide  by  his  own  con- 
struction of  the  words  used.  The  innuendo 
thus  becomes  a  part  of  the  cause  of  action 
stated.  The  I'ule,  as  given  by  all  the  text 
writei's,  is  different  when  the  words  charged 
ai"e  actionable  in  themselves.  In  such  case 
the  defendant  can  put  in  issue  the  truth  of 
the  words  spoken,  either  with  or  without  the 
alleged  meaning.  "It  will  then  be  for  the 
jury  to  say,  from  the  proofs,  whether  the 
plaintiff's  innuendo  was  sustained.  If  not, 
the  plaintiff  may  fall  back  upon  the  words 


themsd^ves,  and  urge  that,  taken  in  their 
natural  and  obvious  signification,  they  are 
actionable  in  themselves,  without  the  alleged 
meaning,  and  that,  therefore,  his  improved 
innuendo  may  be  rejected  as  surplusage." 
Newell,  Defam.  p.  G28,  §  38;  Odger,  Sland. 
&  L.  101,  and  cases  cited.  "An  innuendo 
will  not  vitiate  the  proceedings,  though  new 
matter  be  introduced;  and  wliere  the  matter 
is  superfluous,  and  the  cause  of  action  is 
complete  without  it,  the  innuendo  may  be 
rejected."  Starkie,  Sland.  &  L.  482;  Gage 
V.  Shelton,  3  Rich.  Law,  242.  "If  a  com- 
plaint is  sufficient  without  the  innuendo,  the 
innuendo  may  be  rejected  as  surplusage. 
The  innuendo  may  always  be  rejected  when 
it  merelj^  introduces  matter  not  necessary 
to  support  the  action."  Towns.  Sland.  &  L. 
§  344,  and  cases  cited;  13  Am.  &  Eng.  Enc. 
Law,  4GS.  The  principle  announced  by  these 
authors  is  supported  by  numerous  cases  cited 
by  them,— a  case  from  this  court  being  one. 
In  that  case,  defendant  charged  plaintiff 
with  being  a  whore,  meaning  thereby  that 
plaintiff  "had  been  guilty  of  the  crime  of 
adultery."  The  proof  disclosed  that  plaintiff 
was  an  unmarried  woman.  Upon  an  ap- 
peal from  a  judgment  in  favor  of  plaintiff, 
defendant  insisted  that  as  plaintiff,  by  innu- 
endo, had  declared  that  defendant's  wife  in- 
tended, by  speaking  the  words,  to  impute 
adultery,  plaintiff  was  bound  to  prove  they 
were  uttered  in  the  sense  thus  ascribed  to 
them;  but  the  court  held  that  the  innuendo 
could  be  rejected,  and  sustained  the  judg- 
ment. Hudson  V.  Garner,  22  Mo.  424. 
There  can  be  no  doubt  that  the  words 
"downright  thief,"  applied  to  plaintiff,  im- 
puted to  him  the  crime  of  larceny,  and  were 
in  themselves  actionable.  The  innuendo, 
charging  that  defendant  meant  thereby  to 
charge  plaintiff"  with  official  corruption,  op- 
pression, and  partiality  also  imputed  a 
crime,  and  was  actionable.  Rev.  St.  1889. 
§§  3732,  3733.  Defendant,  by  answer,  ad- 
mitted that  he  applied  to  defendant  the  term 
"downright  thief,"  as  charged.  Upon  this 
state  of  the  pleading,  we  do  not  think  there 
was  error  in  instructing  tlie  jvu-y  that  plain- 
tiff' could  recover  if  defendant  spoke  the 
words  as  charged,  and  they  were  false,  un- 
less plaintiff'  was  justified  in  so  speaking. 

3.  The  first  instruction  required  the  jury,  in 
order  to  find  for  plaintiff,  to  also  find  that 
the  defamatory  words  were  spoken  with  mal- 
ice. The  second  instruction  told  the  jury 
that  malice  existed  in  law  "whenever  a 
wrongful  act  is  intentionally  done  without 
just  cause  or  excuse."  The  fifth  instruction 
authorized  the  jmy,  in  making  their  verdict, 
to  add  thereto,  as  punitive  damages,  "such 
amount  as  will  adequately  punish  the  defend- 
ant for  such  act,  and  serve  as  a  warning  to 
prevent  others  from  being  guilty  of  a  like  act." 
Exemplary  damages  were  thus  authorized 
without  proof  of  express  malice.  Defendant 
insists  that  pvmitive  damages,  in  suits  for 
slander,  are  only  recoverable  when  the  wrong- 


4G2 


MlTl(;AriOX   OF   DAMAGES. 


floer  was  nchiated  by  actual  or  express  mal- 
ice, as  distinguished  from  malice  implied  by 
law.  No  one  is  excused  foi*  the  libel  or  slan- 
der of  another  for  the  reason  that  the  wrong- 
doer was  witliout  malice.  The  actual  in- 
jury suffered  does  not  depend  upon  the  mo- 
tive of  the  wrongdoer.  The  object,  then,  in 
giving  evidence  in  proof  of  malice,  is  to  in- 
crease the  damages  beyond  what  was  actual- 
ly sustained.  Odger,  Shiud.  &  L.  209;  Towns. 
Slaiul.  &  L,  §  91;  Suth.  Dam.  §  122.",,  nnd 
cases  cited.  In  slander  the  words  are  always 
intentionally  spoken,  whatever  meaning  may 
be  imputed  to  them.  Hence,  it  is  said,  when 
slanderous  words  are  spoken,  or  a  libelous  ar- 
ticle is  published  falsely,  the  law  will  affix 
malice  to  them.  There  is  no  necessity  of 
proving  express  malice.  Buckley  v.  Knapp, 
4S  Mo.  IGl.  So  it  is  uniformly  held  tliat 
when  the  words  spoken  are  actionable  in 
themselves,  and  are  proven  to  be  false,  the 
law  wUl  imply  malice.  Hall  v.  Adkins,  59 
Mo.  144;  Price  v,  Whitely,  50  Mo.  439; 
Noeninger  v.  Vogt,  88  Mo.  589;  Mitchell  v. 
Bradstreet  Co.,  116  Mo.  226,  22  S.  W.  358, 
724.  So  it  will  appear  that  malice,  such  as 
the  law  implies,  is  the  very  gist  of  the  ac- 
tion for  slander.  It  is  held  in  some  of  the 
ca.ses  last  cited  that,  when  the  words  spoken 
ai'e  actionable  in  themselves,  the  person  in- 
jured will  be  entitled  to  recover  without  al- 
leging or  proving  special  damages.  It  is 
also  held  that  a  repetition  of  the  defamatory 
words  may  be  given  in  evidence  for  the  pur- 
pose of  proving  express  malice  (Noeninger  v. 
Yogt,  88  ^lo.  59.3),  and  thereby  increasing  the 
damage,  though  malice  was  implied  from 
the  Avords  spoken.  It  is  said  that  "malice, 
in  legal  understanding,  implies  no  more  than 
willfidness."  Buckley  v.  Knapp,  supra. 
Again,  malice  in  law  is  defined  as  "the 
malice  which  is  inferred  from  doing  a  wrong- 
ful act  without  lawful  justification  or  ex- 
cuse." 1  Starkie,  Stand.  &  L.  213.  Townsend 
says:  "The  distinction  between  malice  in  law 
and  malice  in  fact  has  been  supposed  to  con- 
sist in  this:  that  the  one  is  inferred,  and  the 
other  is  proved.  The  supposed  distinction  is 
unreal  and  unsound;  for,  first,  there  is  no  dis- 
tinction between  what  is  inferred  and  what 
is  proved,— what  is,  or  is  supposed  to  be, 
rightly  inferred  is  proved."  Towns.  Sland. 
&  L.  p.  68,  §  87.  We  may  say,  then,  that 
malice,  whether  expressed  or  implied,  means 
llie  same,  the  only  difference  being  in  the 
<'stablishmeut  of  it.  When  malice  is  implied 
from  the  words  spoken  or  published,  the  bur- 
den is  on  the  defendant  to  prove  lawful  jus- 
tification or  excuse,  or  the  absence  of  a  mali- 
cious intent.  On  the  other  hand,  if  the  words 
themselves  do  not  imply  malice,  the  burden 
rests  upon  the  plaintiff  to  establish  it.  When 
malice  exists,  punitive  damages  may  be 
given;  and  it  cannot  be  seen  why  a  distinc- 
lion  should  be  made  when  the  evil  intent  ex- 
isted, whether  implied  or  proved.  It  is  true 
a  distinction  is  made  by  some  courts,  and  it 
is  held  that,  unless  exi)ress  malice  is  proved, 


exemplaiy  damages  shoidd  not  be  allowed. 
This  line  of  decision  was  followed  by  thi« 
St.  Louis  court  of  appeals  in  Nelson  v.  Wal- 
lace, 48  ISIo.  App.  193,  and  Fulkerson  v.  Mur- 
dock,  53  Mo.  App.  156.  It  is  argued  thaf 
punitive  damages  are  only  allowed  in  tr*  ."-pass 
and  other  actions  for  torts,  when  the  offense 
is  committed  in  a  wanton,  rude,  and  aggra- 
vated manner,  indicating  oppres;siou,  or  a  de- 
sire to  injure,  and  that  no  reason  can  be  seen 
for  the  application  of  a  different  rule  in  casL^s 
for  slander  or  libel.  We  think  the  distinction 
does  not  in  fact  exist.  Malice  is  implied  in 
the  willfid  doing  of  any  wrongful  act,  with- 
out justification  or  excuse,  whereby  injury 
is  done  to  another,  whether  it  be  to  his  char- 
acter, his  person,  or  his  propert.y.  Where 
such  act  is  done  maliciously,  therefore,  the 
injured  person  should  be  entitled  to  exem- 
plary damages;  and  it  would  be  immaterial 
whether  malice  was  implied  from  the  nature 
of  the  act  itself,  or  inferred  as  a  fact  from 
all  the  circumstances  under  which  it  was 
committed.  The  question  is  whether  the 
wrong  was  done  willfully,  and  without  law- 
ful justification  or  excuse.  Whatever  the 
decisions  of  the  other  states  may  be,  there 
seems  no  just  ground  for  distinguishing  be- 
tween malice  in  fact  and  malice  in  law,  in 
respect  to  the  right  to  exemplary  damages, 

-in  action  for  libel  and  slander;  and  the  de- 
cisions of  this  state  make  no  such  distinc- 
tion.    In  Buckley  v.   Knapp,   supra,   an  in- 

.  struction  was  approved  which  authorized  the 
recovery  of  punitive  damages  upon  implied 
malice  alone;  and  that  decision  v/as  foUowed 
in  the  suljsequent  case  of  Clements  v.  Ma- 
loney,  55  Mo.  359,  and  the  doctrine  has  since 
these  decisions  been  regarded  as  settled.  It  is 
said  in  Bergmann  v.  Jones,  94  N.  Y.  62:  "The 
falsitj'  of  the  libel  is  sufficient  proof  of  mal- 
ice to  uphold  exemplary  damages,  and  plain- 
tiff's right  to  recover  them  is  in  the  discre- 
tion of  the  jury.  "\Mien  the  falseness  of  the 
libel  is  proved,  as  a  general  rule,  it  is  suffi- 
cient to  warrant  tlie  jury  in  giving  exempla- 
ry damages."  This  ruling  was  approved  by 
the  same  coiu-t  in  AVarner  v.  Publishing  Co., 
132  N.  Y.  183,  30  N.  E.  393,  and  expressly 
followed  in  Hintz  v.  Graupner,  1:^8  lU.  158, 
27  N.  "E.  935.  To  the  same  effect  is  the  case 
of  Blocker  v.  Schoff,  83  Iowa,  269,  48  N.  W. 
1079. 

4.  Exemplary  damages  may  always  be 
given,  in  suits  for  slander,  when  the  words 
are  maliciously  spoken;  but  whether  such 
damages  should  be  given,  in  any  case,  is  a 
matter  within  the  discretion  of  the  jm'y.  In 
order  to  show  good  faith,  and  want  of  mal- 
ice, the  defendant  has  the  right  to  put  in 
evidence  all  the  circumstances  imder  which 
the  words  were  uttered;  and,  if  such  circum- 
stances tend  to  rebut  malice,  such  damages 
covdd  only  be  awarded  in  case  the  words 
were  maliciously  spoken,  but  may,  in  them- 
selves, be  sufficient  proof,  if  malice  is  im- 
plied therefrom.  Plaintiff,  by  innuendo, 
charged   that  defendant,    by   the   slanderous 


MITIGATION   OF   DAMAGES. 


4G3 


^vords  used,  iiitcmlod  to  iinpute  to  him  cor-  ' 
ruption  in  office.  Defend.-mt,  by  answer,  j 
iind  in  mitigation  of  daiuayes,  admitted  tliat 
the  Avords  spolcen  had  respect  solelj'  to  plain- 
tiff's ofiicial  conduct.  Defendant  offered,  as 
was  his  right  to  do,  evidence  tending  to 
prove  tlie  circumstances  under  which  the 
objectionable  words  were  used,  in  order  to 
prove  good  faith,  and  want  of  malicious  in- 
tent. As  has  been  said,  defendant,  as  an 
interested  citizen,  had  the  right  to  make  rea- 
sonable comment  and  fair  criticism  upon 
plaiutift"'s  official  conduct,  but  he  had  no 
right  to  go  beyond  that,  and  slander  him. 
It  was,  in  view  of  all  the  circumstances,  for 
the  jm-y  to  say  how  far  the  evidence  miti- 
gated the  malice,  if  at  all,  and  to  award  the 
damages  accordingly.  We  think  the  effect 
of  the  instruction  on  the  measure  of  dam- 
ages was  to  ignore  this  defense,  and,  as  the 
question  of  exemplary  damages  was  a  mat- 
ter independent  of  the  right  to  recover,  the 
error  was  not  cm-ed  by  the  first  insti'uction, 
which  required  a  finding  that  the  words  were 
maliciously  spoken  in  order  to  a  recovery  for 
any  amount.  Exemplary  damages  are  given 
by  way  of  punishment,  and  the  jury  should 
be  so  insti-ucted  thereon  as  to  leave  no  doubt 
on  the  subject. 

5.  There  was  no  error  in  refusing  to  per- 
mit defendant  to  testify  as  to  the  motives 
which  actuated  him  in  speaking  the  defama- 
tory words,  so  far  as  the  testimony  affected 
the  right  to  recover  compensatory  damages. 
The  effect  would  be  the  same  though  he 
meant  to  say  one  thing,  and  said  another. 
He  is  answerable  for  so  inadequately  ex- 
pressing his  meaning.  Newell,  Defam.  p. 
301;  McGinnis  v.  George  Knapp  &  Co.,  109 
Mo.  148,  IS  S.  W.  1134.  But  the  motives  or 
pm-poses  with  which  the  words  were  spoken 
lie  at  the  very  foundation  of  malice.  They 
are  the  very  conditions  upon  which  exem- 
plary or  punitive  damages  are  predicated, 
jind  no  good  reason  appeal's  why  defendant 
should  not  be  permitted  to  prove  what  his 
motives  were.  Odger  says:  "In  all  cases, 
the  absence  of  maUce,  though  it  may  not  be 
a  bar  to  the  action,  may  j'et  have  a  material 
effect  in  reducing  the  damages.  The  plain- 
tiff is  still  entitled  to  reasonable  compensa- 
tion for  the  injury  he  has  suffered;  but  if 
the  injury  was  unintentional,  or  was  com- 
mitted under  a  sense  of  duty,  or  through 
some  honest  mistake,  clearly,  no  vindictive 
damages  could  be  given.  In  every  case, 
therefore,  the  defendant  may,  in  mitigation 
of  damages,  give  evidence  to  show  that  he 
acted  in  good  faith,  and  with  honesty  of  pur- 


pose, and  not  maliciously."  Odger,  Sland. 
&  L.  317.  "Upon  principle,  the  spirit  and 
intention  of  the  party  pxff)lisliing  a  libel  arc 
fit  to  be  considered  by  the  jury,  in  estimnt- 
ing  the  injury  done  to  the  plaintiff,  and  evi- 
dence tending  to  prove  it  cannot  be  excluded 
simply  because  it  may  disclose  another  and 
different  cause  of  action."  Starkie,  Sland. 
&  L.  §  G39.  "The  intent— meaning  the  intent 
to  effect  certain  consequences — with  wli!ch 
an  act  is  done  is  material  on  tlie  question  of 
t!ie  amount  of  damages.  The  absence  of  a 
bad  intent  will  mitigate  tlie  damages.  The 
presence  of  a  bad  intent  will  aggravate 
them."  Townsh.  Sland.  &  L.  §  91.  We 
think  evidence  of  the  intention  and  motive 
of  defendant  was  admissible  for  the  purpose 
of  mitigating  the  punishment,  by  way  of  ex- 
emplary damages;  but  the  jury  should  have 
been  cautioned  not  to  allow  such  evidence 
to  operate  as  a  defense  to  the  action,  or  to 
mitigate  the  actual  damages  sustained. 

6.  It  does  not  appear  upon  the  face  of  the 
acceptance  offered  in  evidence  that  it  au- 
thoi-ized  any  pai'ticular  person  to  collect  the 
amoimt  due  for  putting  in  the  curbing,  yet 
delivery  to,  and  possession  by,  one  who  had 
only  done  a  small  portion  of  the  work,  was 
a  circumstance  which  may  have  given  the 
holder  an  advantage;  and  we  think  the  cer- 
tificate should  have  been  admitted  for  what 
it  was  worth.  The  ti-ansaction  in  which  the 
certificate  was  issued  by  plaintiff  was  com- 
mented upon  by  defendant  in  the  discussion 
in  which  the  slanderous  words  were  used, 
and  defendant  had  the  right  to  place  the. 
whole  matter  before  tlie  jury,  for  the  pur- 
pose of  showing  good  faith,  and  want  of 
actual  malice.  For  the  same  reason,  de- 
fendant should  have  been  permitted  to  show 
what  he  had  been  told  by  others  in  reference 
to  this  acceptance.  Blocker  v.  Sclioft',  83 
Iowa,  2G5,  48  N.  W.  1079;  Orth  v.  Feather- 
ly,  87  Mich.  320,  49  N.  W.  640. 

7.  There  was  no  error  in  refusing  to  per- 
mit witness  Lane  to  testify  as  to  his  under- 
standing of  the  slanderous  words  used  by 
defendant.  A  witness  may  testify  to .  the 
speaking  of  the  slanderous  words,  "together 
with  all  the  attendant  circumstances  and 
connections,  the  existing  facts;  and,  after 
having  done  so,  it  is  for  the  jurj-  to  deter- 
mine from  the  evidence  what  was  meant." 
Newell,  Defam.  p.  308,  and  cases  cited  in 
note.  For  the  errors  noted  the  judgment  is 
reversed,  and  the  cause  remanded. 


BARCLAY,  J.,  absent 
concior. 


The  other  judges 


4G4 


mitigatio:n'  of  damages. 


LOUISVILLE,  N.  A.  &  C.  RY.  CO.  v.  SNY- 
DER. 

(20  N.  E.  284,  117  Ind.  435.) 

bupreme  Court  of  Indiana.    February  21,  1889. 

Apiieal  froui  circuit  court,  Cliuton  county; 
Joseph  C.  Suit,  Special  Judge. 

Action  by  James  B.  Snyder  against  the 
Louisville,  New  Albany  &  Cliicago  Railway 
Company,  for  personal  injuries.  Judgment 
for  plaintiff,  and  defendant  appeals, 

S.  O.  Bayless  and  W.  H.  Russell,  for  ap- 
pellant. T.  H.  Palmer,  W.  F.  Palmer,  B.  K. 
Higinbotbam,  and  M.  Bristow,  for  appellee. 

ELLIOTT,  C.  J.  The  appellee  was  a  pas- 
senger on  one  of  the  appellant's  trains, 
Avhich,  by  the  falling  of  a  bridge,  was  pre- 
cipitated into  White  river,  and  the  appellee 
severely  injured. 

Dr.  Bowles,  an  expert  witness  called  by 
the  appellant,  gave  an  opinion  as  to  the  na- 
ture and  extent  of  the  injury  sustained  by 
the  appellee,  and  on  cross-examination  it  was 
developed  that  his  testimony  was  in  part 
l)ased  on  statements  made  to  him  by  the  ap- 
pellee. Waiving  all  questions  of  practice, 
and  deciding  the  appellant's  motion  to  strike 
out  as  if  it  were  properly  restricted  to  the 
alleged  incompetent  part  of  the  testimony, 
we  have  no  hesitation  in  deciding  that  the 
trial  court  did  right  in  oveiTuling  the  motion. 
As  we  have  often  decided,  the  physical  or- 
gans of  a  human  being  cannot  be  inspected 
by  the  eyes  of  a  surgeon,  and  the  statements 
of  the  sufferer  must,  of  necessity,  be  taken 
by  the  surgeon.  It  is  not  possible  for  any 
surgeon,  by  a  mere  external  examination,  to 
always  discover  the  character  of  an  injury, 
and  properly  describe  or  treat  an  injured 
man;  and  for  this  reason,  if  for  no  other, 
the  statements  of  the  injured  person  descrip- 
tive of  present  pains  or  symptous  are  always 
competent,  although  narratives  of  past  oc- 
currences are  inadmissible.  On  this  point 
our  own  decisions  are  harmonious,  and  they 
are  right  upon  principle,  and  are  well  sup- 
ported by  authority.  Railroad  Co.  v.  New- 
ell. 104  Ind.  2G4,  3  N.  E.  836;  Railway  Co.  v. 
Falvey,  104  Ind.  409,  3  N.  E.  389,  and  4  N. 
E.  90S;  Railway  Co.  v.  Wood,  113  Ind.  544, 
14  N.  E.  572,  and  16  N.  E.  197;  Board  v.  Leg- 
gett,  115  Ind.  544,  18  N.  E.  53;  Hatch  v.  Ful- 
ler, 131  Mass.  574;  Railroad  Co.  v.  Johns,  36 
Kan.  769,  14  Pac.  237;  Quaife  v.  Railroad 
Co.,  48  Wis.  513,  4  N.  W.  658.  From  these 
decisions  we  shall  not  depart. 

The  fact  that  the  appellee  was  suffering 
from  Bright's  disease  at  the  time  he  was  in- 
jured does  not  impair  his  right  of  recovery. 
The  rule  is  this:  "Where  a  disease  caused 
by  the  injury  supervenes,  as  well  as  where 
the  disease  exists  at  the  time  of  the  injury, 
and  is  aggravated  by  it,  the  plaintife  is  enti- 
tled to  full  compensatory  damages."  Rail- 
road Co.  V.  Hecht.  115  Ind.  443,  17  N.  E.  297; 
Railway  Co.  y.  Wood,  supra;    Railroad  Co. 


V.  I'itzer,  109  Ind.  179,  6  N.  E.  310,  and  10< 
N.  E.  70;  Railroad  Co.  v.  Buck,  96  Ind.  346;. 
Ehrgott  V.  Mayor,  96  N.  Y.  264;  Jucker  v. 
Railroad  Co.,  52  Wis.  150,  8  N.  W.  862;  Rail- 
way Co.  V.  Harris,  122  U.  S.  597,  7  Sup.  Ct. 
1286;  Railway  Co.  v.  Roseuzweig,  113  Pa. 
St.  519,  6  Atl.  545;  Railway  Co.  v.  Leslie,  5T 
Tex.  S3. 

The  rule  we  have  stated  is  thus  expressed 
in  one  of  our  best  text-books:  "Though  the- 
plaintiff  be  afflicted  with  a  disease  or  weak- 
ness which  has  a  tendency  to  aggravate  the- 
iujurj',  the  defendant's  negligence  will  still 
be  held  to  be  the  proximate  cause."  2  Shear. 
&  R.  Neg.  (4th  Ed.)  §  742. 

The  instructions  clearly  and  properly  state 
the  law  on  this  subject. 

The  court  did  not  err  in  instructing  the 
jury  as  to  the  degree  of  care  required  of  the 
appellant;  at  least,  not  as  against  the  ap- 
pellant. The  rule  is  well  settled  that  car- 
riers are  bound  to  use  the  highest  practicable 
degree  of  care  to  secure  the  safety  of  passen- 
gers. 

There  was  no  evidence  of  contributory  neg- 
ligence on  the  part  of  the  appellee,  and  the 
court  might  well  have  refused  any  instruc- 
tion at  all  iipon  that  point.  Where  a  passen- 
ger is  in  his  proper  place  in  the  car,  and 
makes  no  exposure  of  his  person  to  danger., 
there  can  be  no  question  of  contributory  neg- 
ligence. Decisions  like  that  of  Railway  Co> 
v.  Greene,  106  Ind.  279,  6  N.  E.  603,  in  cases 
of  persons  injured  at  a  railroad  crossing, 
are  not  applicable  to  such  a  case  as  the  one 
at  our  bar.  The  law  is,  as  the  jury  were 
told,  that  carriei-s  of  passengers  are  liable 
for  the  slightest  negligence.  Any  negligence 
on  their  part  is  actionable.  Railroad  Co,  v. 
Rainbolt,  99  Ind.  551. 

The  law  will  not  tolerate  any  negligence  on 
the  part  of  carriers,  although  they  are  not 
insurers  of  the  safety  of  their  passengei's. 
The  burden  of  overcoming  the  presumption 
of  negligence  arising  from  evidence  of  the 
occurrence  of  an  accident  and  injury  to  a 
passenger  is  upon  the  carrier.  Packet  Co. 
V.  McCool,  SS  Ind.  392;  Railroad  Co.  v.  Buck, 
96  Ind.  346;  Railroad  Co.  v.  Newell,  supra; 
Railroad  Co.  v.  Rainbolt,  supra;  Anderson  v. 
Scholey,  114  Ind.  .553,  17  N.  E.  125. 

In  Railroad  Co.  v.  Pedigo,  108  Ind.  481,  S 
N.  E.  627,  the  rule  was  applied  in  a  case 
growing  out  of  the  same  occurrence  as  that 
in  which  the  appellee  was  injured.  The 
twenty-second  instruction  asked  by  the  ap- 
pellant, and  refused,  reads  thus:  "The  court 
further  instructs  you  that  by  'negligence. '^ 
when  used  in  these  instructions,  is  meant 
either  the  failure  to  do  what  a  reasonable 
person  would  ordinarily  have  done  under  the 
circumstances  of  the  situation,  or  doing  what 
such  person  would  not  have  done  under  the 
existing  circumstances."  This  instruction 
was  properly  refused.  It  is  not  proper  in 
such  a  case  as  this  to  define  negligence  as  it 
is  defined  in  this  instruction.  In  a  case  of 
this  character,  the  omission  to  exercise  the 


MITIGATION  OF  DAMAGES. 


4G5 


highest  degree  of  practicable  care  constitutes 
negligence,  but  in  other  cases  the  failure  to 
exercise  ordinary  care  constitutes  negligence. 
Counsel  are  greatly  in  error  in  asserting,  as 
they  do,  that  the  instruction  correctly  fur- 
nishes the  standard  for  the  government  of 
tlie  jury.  The  appellant  was,  as  we  have 
substantially  said,  bound  to  do  more  than 
prudent  men  would  ordinarily  do,  since  it 
was  bound  to  use  a  very  high  degree  of  care. 
The  duty  of  a  railroad  company  engaged  in 
carrying  passengers  is  not  always  discharged 
by  purchasing  from  reputable  manufacturers 
the  iron  rods  or  other  iron-work  used  in  the 
constniction  of  its  bridges.  The  duty  of  the 
company  is  not  discharged  by  trusting,  with- 
out inspecting  and  testing,  to  the  reputation 
of  the  manufacturers,  and  the  external  ap- 
pearance of  such  materials.  The  law  re- 
quires that  before  the  lives  of  passengers 
are  trusted  to  the  safety  of  its  bridges,  the 
company  shall  carefully  and  skillfully  test 
LAW  DAM.2d  Ed.— 30 


and  inspect  the  materials  it  uses  in  such 
structures.  This  duty  of  inspection  does  not 
end  when  the  materials  are  put  in  place,  but 
continues  during  their  use;  for  the  company 
is  bound  to  test  them,  from  time  to  time,  to 
ascertain  whether  they  are  being  impaired 
by  use  or  exposure  to  the  elements.  Manser 
V.  Railway  Co.,  3  Law  T.  (N.  S.)  585;  Rail- 
road Co.  V.  Suggs,  62  Tex.  323;  Stokes  v. 
Railway  Co.,  2  Fost.  &  F.  691;  Robinson 
V.  Railroad  Co.,  9  Fed.  877;  Richardson  v. 
Railroad  Co.,  L.  R.  10  C.  P.  486,  L.  R.  1  C. 
P.  Div.  342;  Ingalls  v.  Bills,  9  Mete.  1;  Frink 
V.  Potter,  17  111.  406;  Bremner  v.  Williams, 
1  Car.  &  P.  414;  Hegeman  v.  Railroad  Corp., 
13  N.  y.  9;  Alden  v.  Railway  Co.,  26  N.  Y. 
102. 

The  de^ijision  in  the  case  of  Railroad  Co.  v. 
Boyd,  65  Ind.  527,  is  not  in  conflict  with  this 
doctrine,  for  in  that  case  an  inspection  was 
made. 

Judgment  aflarmed. 


•iGti 


MITIGATION   OF  DAMAGES. 


BUNTING  V.  HOGSETT 

(21  Atl.  33,  139  Pa.  St.  363.) 

Supreme  Court  of  Pennsylvania.     Jan.   12, 
1891. 

Appeal  from  court  of  common  pleas,  Alle- 
gheny county. 

Action  by  Henry  C.  Bunting  against  Robert 
Hogsett  for  personal  injuries.  Plaintiff,  Hen- 
ry C.  Bunting,  excepted  to  the  following  por- 
tion of  the  cliarge  to  the  jury:  "He  [plaintiff] 
is  also  entitled  to  compensation  for  the  loss 
of  earning  power  during  the  expectancy  of  his 
life.  That  is  one  of  the  most  ditlicult  things 
to  determine,  but  yoii  have  to  use  simply  your 
good  judgment,  for  the  reason  that  you  can- 
not tell  how  long  a  man  may  live.  You  can- 
not tell  wiiether  he  will  live  the  full  expect- 
ancy of  his  life.  No  one  can  tell  that.  While 
lie  was  injured  by  the  accident  he  still  might 
have  had  a  disease  that  would  shorten  his 
life  anyhow,  and  if  there  is  proof  of  that,  as 
there  is  proof  in  this  case  that  he  had  Bright's 
disease,  and  that  was  not  occasioned,  or  hard- 
ly could  be  occasioned,  by  this  accident,  you 
will  take  that  into  consideration,  and  consider 
whether,  by  reason  of  that,  his  expectancy  of 
life  is  not  shortened  very  much  from  what  the 
tables  that  have  been  given  in  evidence  show. 
It  is  alleged  that  his  expectancy  of  life  could 
not  be  as  shown  in  the  tables,  because  phy- 
sicians certify  he  has  Bright's  disease.  Your 
experience  in  life  will  tell  you  that  that  is  a 
very  dangerous  disease,  and  if  it  was  not 
caused  by  this  accident— and  it  is  not  pretend- 


ed it  was— you  will  take-that  into  considera- 
tion in  determining  the  loss  of  his  earning 
power  during  the  time  which  he  may  be  ex- 
pected to  live."  The  jury  returned  a  verdict 
of  !j:i,733  in  favor  of  Henry  C.  Bunting,  and 
of  $500  for  Phoebe  J.  Bunting.  Plaintiff, 
Henry  Bunting,  now  prosecutes  this  appeal, 
assigning  the  above  charge  as  error. 

Edw.  Campbell  and  Thos.  Patterson,  for  ap- 
pellant A.  D.  Boyd  and  Lazear  &  Orr,  for 
appellee. 

CLARK,  J.  There  was  evidence  in  this  case 
that  the  plaintiff,  Henry  C.  Bunting,  at  the 
time  of  the  trial,  was  suffering  from  what 
is  known  as  "Bright's  disease  of  the  kidneys." 
Upon  a  chemical  analysis,  albumen  was  found 
in  his  urine.  He  suffered  from  dizziness,  fail- 
ure of  sight,  and  double  vision.  He  was  fee- 
ble, had  shortness  of  breath,  and  a  stagger- 
ing gait,  and  exhibited  other  symptoms  of  this 
malady.  The  testimony  of  some  of  the  med- 
ical experts  was  that  they  believed  him  to 
be  suffering  from  Bright's  disease,  and  there 
was  little,  if  any,  evidence  to  the  contrary. 
The  court  very  properly,  therefore,  instructed 
the  jury,  that  there  was  proof  of  this  fact  in 
tne  case;  that  it  was  a  dangerous  disease; 
and  that  they  should  take  this  into  considera- 
tion in  determining  Mr.  Bunting's  expectancy 
of  life  and  the  loss  of  his  earning  power.  Nor 
was  there  any  evidence  to  justify  the  jury  in 
finding  that  this  disease  was  caused  by  the 
personal  injuries  received  in  the  collision. 
The  judgment  is  therefore  affirmed. 


MITIGATION   OF   DAMAGES. 


467 


CARPENTER   ot  al.   v.  AMERICAN   BLDG. 
&  LOAN  ASS'N. 

(56  N.  W.  95,  54  Minn.  403.) 

.Supreme  Court  of  Minnesota.     Aug.   17,  1898. 

Appeal  from  district  court,  Hennepin  coun- 
ty; Loclireu,  Jud^e. 

Action  by  Cliarles  W.  Carpenter  and  oth- 
ers ajxainst  the  American  Buildinj^:  &  Loan 
Association.  Plaintiffs  had  judgment,  and 
defendant  appends.     Affirmed. 

Hart  &  Brewer,  Rea  &  Hubacliek,  and  O. 
M.  Cooley,  for  appellant.  Dodd  &  Bowman 
and  Norman  Fetter,  (Lusk,  Bmm  &  Had- 
ley,  of  counsel,)  for  respondents. 

COLLINS,  3.  In  substance,  the  complaint 
herein  is  identical  with  that  involved  in 
Allen  V.  This  Defendant,  49  INIinn.  544.  52 
N.  "W.  Rep.  144.  The  conspicuous  ditference 
in  the  answers  in  the  two  actions  is  that  in 
the  case  just  mentioned  the  defendant  as- 
sociation justified  the  transactions  of  which 
the  plaintiff  complained,  affirmed  the  regu- 
larity and  validity  of  the  alleged  sales,  and 
relied  upon  them  as  a  perfect  defense  to  the 
cause  of  action,  while  here  the  answer  dis- 
affiraied  and  repudiated  the  sales,  expressly 
averred  their  invalidity,  and  alleged  that  in 
the  month  of  May,  1892,  the  various  stock- 
holders had  beeu  notified  by  mail  that  such 
pretended  sales  were  null,  and  had  no  effect 
upon  their  rights,  and  that  they  were  en- 
titled to  reinstatement,  upon  payment  of  ac- 
tual dues  and  fines;  and  the  stockholdei-s 
were  further  notified  that,  unless  their  stock 
was  reinstated  upon  the  terms  proposed,  a 
sale  of  the  same  would  be  made  on  June  23, 
1892,  pursuant  to  the  by-laws  of  the  associa- 
tion. The  court  below  found  that  nearly  all 
of  the  pretended  sales  had  been  made  in 
the  years  1889  and  1890.  It  further  found 
that  the  notice  just  referred  to  was  issued  in 
the  month  of  May,  1892,  by  means  of  a  cir- 
cular letter,  in  which  it  was  stated  that  said 
sales  had  been  declared  void  by  the  courts 
of  the  state.  It  is  a  fair  inference  that 
until  this  circular  was  promulgated  the  de- 
fendant had  persisted  in  its  assertion  that 
the  sales  were  regular  and  valid;  and  as  the 
opinion  in  the  Allen  Case  was  filed  on  May 
16,  1892,  it  may  also  be  inferred  that  the 
circular  was  prepared  after  that  date,  and 
was  induced  by  the  result  of  that  action. 
The  trial  court  also  found  that  the  pi-esent 
case  was  commenced  June  22d,  and  that  the 
assignments  tmder  which  the  plaintiffs 
claim  were  executed  and  delivered  prior 
thereto.  It  was  found  that  on  June  23d  the 
stock  shares  had  been  sold  to  defendant,  in 
pursuance  of  the  circular  notice,  and  that,  in 
fovm,  the  sale  was  regular. 

We  regard  this  cause  as  wholly  controllel 
l)y  that  of  Allen  v.  Association,  supra.  It 
was  said  in  the  opinion  therein — and  our 
views  remain  the  same — that  the  right  of 
action  there  recognized  and  upheld  was 
foimded  upon  the  fact  that  there  had  been 
a  distinct  act  of  dominion    wrougiiiily   ex- 


ercised over  the  shareholders'  property,  in- 
consistent Avith  their  rights,  and  in  denial 
of  them.  The  defendant  corporation,  by  as- 
suming to  sell,  and  wrongfully  selling,  the 
shares,  deprived  the  owners  of  their  stock, 
and  the  advantages  accraing  from  it,  as 
much  when  bidding  it  in  tor  itself  as  when 
it  accepted  the  bid  of  a  stranger,  and  then 
transferro<l  the  title  on  its  books.  This,  it 
was  said,  was  an  act  of  interference,  sub- 
versive of  the  rights  of  the  stockholders  to 
enjoy  and  control  the  stock,  and  may  be 
treated  by  them  as  a  conversion  of  their 
property.  That  any  distinct  act  of  domin- 
ion wrong-fully  exerted  over  one's  propi-rty, 
in  denial  of  his  right,  or  inconsistent  with 
it,  amounts  to,  and  may  be  treated  as,  a 
conversion,  was  recognized  long  ago  in  t1  is 
coin-t,  in  Hossfeldt  v.  Dill,  28  Minn.  469, 
10  N.  W.  Rep.  781.  The  right,  then,  of  the 
original  shareholders,  or  of  these  plaintiffs, 
as  their  assignees,  to  maintain  this  action, 
was  perfect  from  the  day  it  accrued  up  to 
the  time  that  defendint  association  aban- 
doned its  former  line  of  defense,  and  oft'm-ed 
to  reinstate, — a  period  of  from  two  to  three 
years.  This  was  settled  in  the  Allen  C  is;s 
so  that  the  present  inquiiy  is  solely  as  to 
the  effect  of  the  offer  to  reinstate  upon  an 
existing  and  perfect  right  of  action  then 
held  by  the  shareholders  or  by  the  pla  n- 
tlffs,  and  the  offer  was  nothing  more  Ihin 
an  offer  to  return  to  the  rightful  ow  er 
property  already  converted  to  the  defend- 
ant's use.  It  was  an  attempt  on  the  p:irt 
of  the  association,  after  it  had  actually  con- 
verted the  stock  shares  to  its  own  use,  and 
had  for  the  term  of  from  one  to  thr^e  yeirs 
denied  that  the  fonner  owners  had  any  in- 
terest in  the  same,  to  compel  them  to  re- 
ceive back  the  converted  property,  agunst 
their  will.  The  palpable  purpose  of  the 
offer  to  reinstate  was  to  deprive  tlie  share- 
holders of  a  clear  right  possessed  by  each 
to  elect  as  between  remedies, — to  deternnne 
whether  their  actions  should  be  brought  to 
recover  the  stock  shares  in  specie,  or  to  re- 
cover for  the  value  of  the  same.  If  the 
offer  could  be  given  the  full  effect  de^■ired, 
the  defendant  would  be  allowed  to  pei-pe- 
trate  a  wrong;  to  persist  that  it  had  author- 
ity so  to  do;  and  finally,  when  defeated  in 
the  courts,  to  take  away  from  the  injure  1 
party  his  right  to  pursue  his  choice  of  con- 
current remedies.  It  is  safe  to  say  that  the 
option  as  to  remedy  is  not  with  the  par  y 
who  has  inflicted  the  injury,  for  if  it  were 
he  would  be  permitted  to  take  advantage 
of  his  own  wrong. 

It  is  well  settled,  as  a  general  proposition, 
that  when  an  actual  conversion  of  chattels 
has  taken  place  the  owner  is  imder  no  ob- 
ligation to  receive  them  back,  when  tendereil 
by  the  wrongdoer.  6  Bac.  Abr.  677;  9  Bac. 
Abr.  559;  4  Amer.  &  Eng.  Enc.  Law,  12."), 
and  cases  cited.  The  right  of  action  is 
comp'rte  and  perfect  when  the  convei"si on 
takes  place,  and  the  object  of  the  acti  n 
i  is  to  recover  damages,  not  to  regain  posses- 


468 


MITIGATION   OF   DAMAGES. 


sion  of  the  thing  itself.  Even  if  the  goods 
be  rotumod  by  the  wrongdoer,  and  are  ac- 
cepted bj'  the  owner,  after  the  action  is 
brought,  damages,  nominal  or  actual,  may 
be  recovered.  There  is  a  class  of  cases 
when,  in  trespass  or  trover,  the  defendant 
may  mitigate  the  damages  by  a  timely  and 
proper  retimi  of  the  property.  The  iiiles 
wliicli  govern  in  such  cases  seem  to  be  that 
where  the  wrong  lacks  the  element  of  will- 
fulness—has been  committed  in  good  faitli— 
the  court,  in  its  discretion,  may  order  a  re- 
turn, upon  timely  application  by  the  defend- 
ant, accompanied  by  au  offer  to  pay  all 
costs,  and  a  showing  that  no  real  injui-y  will 
have  been  suffered  by  the  plaintiff  when 
possession  is  restored.  The  right  of  action 
is  not  defeated  by  the  order  of  the  court, 
but  damages  are  mitigated.  The  subject 
and  the  authorities  are  fully  reviewed  in 
Hart  V.  Skinner,  16  Vt.  138.  See,  also,  Rey- 
nolds V.  Shuler,  5  Cow.  323,  and  Churchill 
V.  Welsh,  47  Wis.  39,  1  N.  W.  Rep.  398.  We 
have  no  such  case  now  before  us. 


The  point  is  made  upon  this  appeal  that 
it  was  incumbent  upon  the  plaintiffs  to  pro- 
duce and  surrender  up  the  stock  or  share 
certificates  before  they  could  recover;  Jos- 
lyn  v.  Distilhng  Co.,  44  Minn.  183,  46  N.  W. 
Rep.  337,  being  the  principal  authority  relied 
on.  But  plaintiffs  are  not  asking,  as  was 
demanded  there,  for  the  cancellation  of 
stock  certificates,  the  transfer  of  such  stock 
upon  the  books  of  the  association,  and  the 
issuance  of  new  certificates.  Nor  were  the 
conclusions  reached  in  the  Joslyn  Case 
adopted  on  any  view  of  the  negotiability  of 
stock  certificates,  but  on  general  principles 
appertaining  to  the  doctrine  of  estoppel. 
The  transfer  or  assignment  of  the  certifi- 
cates here  involved  could  give  the  purchaser 
no  greater  lights,  as  against  the  associa- 
tion, than  the  assignees  had.  Hammond  v. 
Hastings,  134  U.  S.  401,  10  Sup.  Ct.  Rep. 
727. 

The  remaining  points  made  by  counsel  for 
appellant  need  not  be  specifically  refeiTed 
to.    Judgment  affirmed. 


MITIGATION   OF  DAMAGES. 


469 


WRIGHT    r.    BANK    OF    THE    METROP- 
OLIS. 

(18  N.  E.  79,  110  N.  y.  237.) 

Court  of  Appeals  of  New  York.    October  2, 

1888. 

Appeal  from  supreme  court,  general  term. 
Fourth  department. 

About  the  7th  of  January,  1878,  one  Henry 
C.  Elliott  received  from  his  correspondent  in 
Rome,  N.  Y.,  (B.  Huntington  Wright,)  his 
check  for  $2,000,  payable  to  the  order  of  El- 
liott, with  a  request  from  Wright  that  he 
(Elliott)  would  meet  some  drafts  Wright 
would  draw  on  him,  and  obtain  payment 
from  the  check.  He  accordingly  honored  the 
drafts,  and.  having  indorsed  the  check,  pro- 
cured its  discount  by  the  defendant.  It  was 
not  paid  when  presented,  and  Elliott  being 
unable  to  learn  the  reason,  went  to  Rome  to 
see  the  drawer  of  the  check.  He  then  learn- 
ed that  the  drawer  had  made  a  general  as- 
signment for  the  benefit  of  his  creditors,  and 
stated  his  inability  to  do  anything  for  Elli- 
ott Finally,  Elliott  succeeded  in  obtaining 
a  number  of  shares  of  stock  in  different  rail- 
road companies,  as  collateral  security  to  the 
check  then  lying  protested  in  the  hands  of 
the  defendant  The  histoiy  of  the  intei-view 
resulting  in  the  procuring  of  the  stock  by 
Elliott  as  given  on  the  trial  is  contradictory, 
but  the  verdict  of  the  jury  shows  that  they 
believed  that  which  was  given,  on  the  part 
of  the  plaintiff.  From  tlje  evidence  thus 
given  it  appears  that  the  stock  was  in  reality 
the  stock  of  Benjamin  H.  Wright,  the  fa- 
ther of  B.  Huntington  Wright,  and  that  it  was 
delivered  by  him  to  Elliott  voluntarily,  and 
for  the  pui-pose  of  being  used  as  a  collateral 
to  his  own  note  at  six  months,  which  was 
to  be  used  to  take  up  the  check;  but  the 
stock  was  not  to  be  sold  for  six  months,  as 
it  was  then  selling  in  market  much  below 
what  the  father  thought  the  stock  was  really 
worth.  The  stock  was  owned  by  Mr.  Wright, 
as  he  said,  for  an  investment,  and  he  had  no 
idea  of  selling  it;  but  he  allowed  Elliott  to 
take  it  because  he  felt  sorry  for  his  situa- 
tion, and  wanted  to  help  him,  as  far  as  he 
reasonably  could,  out  of  the  difficulty  he 
was  in.  Elliott  took  the  stock  and  went  to 
New  York,  and  had  a  talk  with  the  cashier 
and  vice-president  of  the  defendant,  who  re- 
served their  decision  as  to  whether  they 
would  take  the  note  and  the  stock.  Subse- 
quently, and  on  the  17th  of  January,  the 
cashier  wrote  that  the  stock  being  non-divi- 
dend paying,  and  the  note  six  months  paper, 
it  would  be  impossible  to  get  it  through  the 
board;  and  he  suggested  it  would  be  much 
better  to  obtain  Mr.  Wright's  consent  to  sell 
the  stock,  and  to  make  his  (Elliott's)  account 
good  in  that  way.  Elliott  inclosed  this  note 
to  Mr.  Wright  in  a  letter  addressed  to  "B. 
H.  Wright;"  and  in  response,  and  on  the  22d 
day  of  January,  Benjamin  H.  Wright,  the 
owner  of  the  stock,   wrote  Mr.   Rogers,  the 


cashier  of  defendant,  refusing  to  sell  the 
stock,  or  to  permit  of  its  being  sold.  Mr. 
Rogers  had  never  seen  either  of  the  Messrs. 
Wright,  and  did  not  know  there  were  two; 
and  subsequently,  and  about  the  2!)tli  of  Jan- 
uary, Elliott  told  him  that  Mr.  Wright  au- 
thorized tlie  sale  of  the  stocks,  and  they 
were  immediately  sold,  less  commission  for 
$2,201.50.  On  the  part  of  the  plaintiff  it  was 
claimed  that  Mr.  Wright,  the  true  owner  of 
the  stocks,  never  gave  any  such  authority  to 
sell  them,  and  that  he  was  unaware  that 
they  had  been  sold  until  May  9,  1878.  Feb- 
ruary 14,  1S81.  the  stock  reached  the  high- 
est price,  down  to  the  day  of  trial,  selling  on 
that  day  for  $18,003.  This  action  was  com- 
menced October  7,  1879.  Mr.  Wright,  the 
owner  of  the  stock,  was  about  seventy-six 
years  of  age  in  May,  1878,  and  in  the  latter 
part  of  that  year  went  south,  and  returned 
early  in  the  year  1879.  On  the  9th  or  May, 
1878,  he  made  a  demand  upon  the  defendant 
for  the  stocks,  and  tendered  to  it  the  amount 
of  the  check  and  interest,  being  something 
over  $2,000.  The  cashier  stated  the  stocks 
had  been  sold  by  the  authority  of  the  owner 
thereof,  as  he  supposed,  given  through  Mr. 
Elliott,  and  refused  to  deliver  them  or  their 
value.  The  original  plaintiff  died  since  the 
first  ti'ial  of  the  case,  and  the  present  one 
was  duly  substituted.  The  court  charged  the 
jury  that  if  they  found  for  the  plaintiff  he 
was  entitled  to  recover  the  highest  price  at 
which  the  stocks  could  have  been  sold  in  the 
market  between  the  date  of  their  actual  con- 
version and  a  reasonable  time  thereafter,  and 
that  the  jury  should  fix  the  reasonable  time, 
not  arbitrarily  or  through  sympathy  or  prej- 
udice; but  they  were  to  say  what,  under  all 
the  circumstances,  would  be  a  reasonable 
time  within  which  to  commence  this  action, 
and  also,  it  may  be,  reasonable  diligence  in 
prosecuting  it;  because  if  the  action  were 
commenced  in  fact  within  a  reasonable  time 
after  the  conversion  of  the  stock,  and  had 
been  prosecuted  with  reasonable  diligence 
since,  then  the  plaintiff  was  entitled  to  re- 
cover the  highest  market  price  that  the  stock 
reached  between  the  date  of  the  conversion 
and  the  time  of  the  trial,  less  the  amount  of 
the  check  and  interest,  and  with  interest  on 
the  balance.  This  charge  was  duly  excepted 
to.  The  jury  found  a  verdict  for  $3,391.25. 
There  is  no  evidence  which  shows  when  the 
stock  reached  that  value.  Upon  the  rendi- 
tion of  the  verdict  both  parties  moved  to  set 
it  aside,  the  plaintiff  on  the  ground  that  he 
was  entitled,  under  the  charge,  to  the  high- 
est value  of  the  stock  down  toi  the  trial,  and 
the  defendant  on  the  ground  that  the  dam- 
ages were  excessive  and  contrary  to  evi- 
dence. The  court  granted  the  motion  of  the 
plaintiff,  and  set  the  verdict  aside  on  the 
ground  stated,  and  denied  the  motion  of  the 
defendant.  The  defendant  appealed  to  the 
general  term  from  both  of  such  orders.  That 
court  reversed   the  order   setting  aside  the 


470 


MITIGATION   or  DAMAGES. 


verdict,  and  ordered  judgmeiU  thereon,  and 
atfirnied  the  order  made  on  dei'eudaut's  mo- 
tiou,  refusing  to  set  aside  the  verdict.  Judg- 
ment was  then  entered  upon  the  verdict  of 
the  jury,  and  from  tliat  judgment  botli  sides 
appeal  to  this  court,  and  they  also  appeal 
from  the  orders  of  the  general  term  upon 
which  the  judgment  was  qntered. 

W.  E.  Scripture,  for  plaintiff.     Joseph  H. 
Choate  and  John  Delahuuty,  for  defendant. 

PECKHAM,  J.,  (after  stating  the  facts  as 
above.)  This  case  comes  before  us  in  a 
somewhat  peculiar  condition.  As  both  par- 
ties appeal  from  the  same  judgment,  which 
is  for  a  sum  of  money  only,  it  would  seem 
as  if  there  ought  not  to  be  much  difficulty  in 
obtivining  its  reversal.  It  is  obvious,  how- 
ever, that  a  mere  reversal  would  do  neither 
party  any  good,  as  the  case  would  then  go 
down  for  a  new  trial,  leaving  the  important 
legal  question  in  the  case  not  passed  upon 
by  this  court.  This,  we  think,  would  be  an 
injustice  to  both  sides.  The  case  is  here,  and 
the  main  question  is  in  regard  to  the  rule 
of  damages,  and  we  think  it  ought  to  be  de- 
cided. By  this  charge  the  case  was  left  to 
the  jury  to  give  the  highest  price  the  stock 
could  have  been  sold  for,  intermediate  its 
conversion  and  the  day  of  trial,  provided  the 
jury  thought,  under  all  the  circumstances, 
that  the  action  had  been  commenced  within 
a  reasonable  time  after  the  conversion,  and 
had  been  prosecuted  with  reasonable  dili- 
gence since.  Authority  for  this  rule  is  claim- 
ed under  Romaine  v.  Van  Allen,  26  N.  Y.  309, 
and  several  other  cases  of  a  somewhat  sim- 
ilar nature,  referred  to  therein.  Markham  v. 
Jaudon,  41  N.  Y.  235,  followed  the  rule  laid 
down  in  Romaine  v.  Van  Allen.  In  these 
two  cases  a  recovery  was  permitted  which 
gave  the  plaintiff  the  highest  price  of  the 
stock  between  the  conversion  and  the  trial. 
In  the  Markham  Case  the  plaintiff  had  not 
paid  for  the  stocks,  but  was  having  them 
carried  for  him  by  his  broker  (the  defend- 
ant) on  a  margin.  Yet  this  fact  was  not  re- 
garded as  making  any  difference  in  the  rule 
of  damages,  and  the  case  was  thought  to  be 
controlled  by  that  of  Romaine.  In  this  state 
of  the  rule  the  case  of  Matthews  v.  Coe,  49 
N.  Y.  57-G2,  came  before  the  court.  The  pre- 
cise question  was  not  therein  involved;  but 
the  court,  per  Church,  C.  J.,  took  occasion  to 
intimate  that  it  was  not  entirely  satisfied 
with  the  coiTectness  of  the  rule  in  any  case 
not  special  and  exceptional  in  its  circum- 
stances; and  the  learned  judge  added  that 
they  did  not  regard  the  rule  as  so  firmly  set- 
tled by  authority  as  to  be  beyond  the  reach 
of  review  whenever  an  occasion  sliould  ren- 
der it  necessary.  One  phase  of  the  question 
again  came  before  this  court,  and  in  proper 
form,  in  Baker  v.  Drake,  53  N.  Y.  211,  Avhere 
the  plaintiff  had  paid  but  a  small  percentage 
on  the  value  of  the  stock,  and  his  broker, 


the  defendant,  was  carrying  the  same  on  a 
margin,  and  the  plaintiff   had  recovered  in 
the  court  below,  as  damages  for  the  unau- 
thorized sale  of  the  stock,  the  highest  price 
between  the  time  of  conversion  and  the  time- 
of  trial.    The  rule  was  applied  to   substan- 
tially the  same  facts  as  in  Jtlarkham  v.  Jau- 
don, supra,  and  that  case  was  cited  as  au- 
thority for  the  decision  of  the  court  below. 
This  court,  however,  reversed  the  judgment 
and  disapproved  the  rule  of  damages  which 
had  been  applied.    The  opinion  was  written 
by  that  vei-y  able  and  learned  judge,  Rapal- 
lo,  and  all  the  cases  pertaining  to  the  subject 
were  reviewed  by  him,  and  in  such  a  master- 
ly manner  as  to  leave  nothing  further  for 
us  to  do  in  that  direction.    We  think  the  rea- 
soning of  the  opinion  calls  for  a  reversal  of 
this  judgment.    In  the  course  of  his  opinion 
the  judge  said  that  the  rule  of  damages,  as 
laid  down  by  the  trial  court,  following  the 
case  of  Markham  v.  Jaudon,  had  "been  rec- 
ognized and  adopted  in  several  late  adjudica- 
tions in  this  state  in  actions  for  the  conver- 
sion of  property  of  fluctuating  value;    but 
its  soundness  as  a  genei-al  rule,  applicable 
to  all  cases  of  conversion  of  such  property, 
has  been  seriously  questioned,  and  is  denied 
in  various  adjudications  in  this  and  other 
states."    The  rule  Avas  not  regarded  as  one 
of  those  settled  principles  in  the  law  as  to 
the  measure  of  damages,  to  which  the  max- 
im  stare  decisis    should    be    applied.     The 
principle  upon  which  the  case  was  decided 
rested  upon  the  fundamental  theory  that  in 
all  cases  of  the  conversion  of  property  (ex- 
cept where  punitive  damages  are  allowed) 
the  rule  to  be  adopted  should  be  one  which 
affords  the  plamtifif  a  just  indemnity  for  the 
loss   he   has   sustained   by   the   sale   of  the 
stock;   and,  in  cases  where  a  loss  of  profits 
is  claimed,  it  should  be,  when  awarded  at 
all,  an  amount  sufficient  to  indemnify  the 
party  injured  for  the  loss  which  is  the  nat- 
ural, reasonable,  and  proximate  result  of  the 
wrongful   act  complained  of,   and   which  a 
proper  degree  of  prudence  on  the  part  of  the 
complainant   would  not  have  avei'ted.    The 
rule  thus  stated,  in  the  language  of  Judge 
Rapallo,  he  proceeds  to  apply  to  the  facts 
of  the  case  before  him.    In  stating  what  in 
his  view  would  be  a  proper  indemnity  to  the 
injured  party  in  such  a  case,   the  learned 
judge   commenced    his   statement   with   the 
fact  that  the  plaintiff  did  not  hold  the  stocks 
for  investment;    and  he  added  that,  if  they 
had  been  paid  for  and  owned  by  the  plain- 
tiff, different  considerations  would  arise,  but 
it  must  be  borne  in  mind  that  we  are  treat- 
ing of  a  speculation  carried  on  with  the  cap- 
ital of  the  broker,  and  not  of  the  customer. 
If  the  broker  has  violated  his  contract  or 
disposed  of  the  stock  without  authority,  the 
customer  is  entitled   to  recover   such   dam- 
ages as  would  naturally  be  sustained  in  re- 
storing himself  to  the  position  of  which  he 
has  been    deprived.     He    certainly  has    no 


MITIGATION   OF  DAMAGES. 


471 


right  to  be  placed  in  a  better  position  than 
he  would  be  in  if  the  wrong  had  not  been 
done.  The  whole  reasoning  of  the  opinion 
is  still  based  upon  the  question  as  to  what 
damages  would  naturally  be  sustained  by 
the  plaintiff  in  restoring  himself  to  the  posi- 
tion he  had  been  m;  or  in  other  words,  in  re- 
purchasing the  stock.  It  is  assumed  in  the 
opinion  that  the  sale  by  the  defendant  was 
illegal  and  a  conversion,  and  that  plaintiff 
had  a  right  to  disathrm  the  sale,  and  to  re- 
quire defendants  to  replace  the  stock.  If 
they  failed,  then  the  learned  judge  says  the 
plaintiff's  remedy  was  to  do  it  himself,  and 
to  charge  the  defendants  with  the  loss  nec- 
essarily sustained  by  him  in  doing  so. 

Is  not  this  equally  the  duty  of  a  plaintiff 
who  owns  the  whole  of  the  stock  that  has 
been  wrongfully  sold?  I  mean,  of  course,  to 
exclude  all  question  of  punitive  damages 
resting  on  bad  faith.  In  the  one  case  the 
plaintiff  has  a  valid  contract  with  the  broker 
to  hold  the  stock,  and  the  broker  violates  it 
and  sells  the  stock.  The  duty  of  the  broker 
is  to  replace  it  at  once,  upon  the  demand  of 
the  plaintiff.  In  case  he  does  not,  it  is  the 
duty  of  the  plaintiff  to  repurchase  it.  Why 
should  not  the  same  duty  rest  upon  a  plain- 
tiff' who  has  paid  in  full  for  his  stock,  and 
has  deposited  it  with  another  conditionally? 
The  broker  who  purchased  it  on  a  margin 
for  the  plaintiff  violates  his  contract  and  his 
duty  when  he  wrongfully  sells  the  stock, 
just  as  much  as  if  the  whole  purchase  price 
had  been  paid  by  the  plaintiff.  His  duty  is 
in  each  case  to  replace  the  stock  upon  de- 
mand, and,  in  case  he  fail  so  to  do,  then  the 
duty  of  the  plaintiff  springs  up,  and  he 
should  repurchase  the  stock  himself.  This 
duty  it  seems  to  me  is  founded  upon  the 
general  duty  which  one  owes  to  another  who 
converts  his  property  imder  an  honest  mis- 
take, to  render  the  resulting  damage  as 
light  as  it  may  be  reasonably  within  his 
power  to  do.  It  is  well  said  by  Earl,  J.,  in 
Parsons  v.  Sutton,  66  N.  Y.  92,  that  "the 
party  who  suffers  from  a  breach  of  contract 
must  so  act  as  to  make  his  damages  as 
small  as  he  reasonably  can.  He  must  not 
by  inattention,  want  of  care,  or  inexcusable 
negligence  permit  his  damage  to  grow,  and 
then  charge  it  all  to  the  other  party.  The 
law  gives  him  all  the  redress  he  should  have 
by  indemnifying  him  for  the  damage  which 
lie  necessarily  sustains."  See,  also.  Dillon 
V.  Anderson,  43  N.  Y.  231;  Hogle  v.  Railroad 
Co.,  28  Hun,  363,— the  latter  case  being  an 
action  of  tort.  In  such  a  case  as  this,  wheth- 
er the  action  sounds  in  tort  or  is  based  al- 
together upon  contract,  the  rule  of  damages 
is  the  same.  Per  Denio,  C.  J.,  in  Scott  v. 
Rogers,  31  N.  Y.  676;  and  per  Rapallo,  J., 
in  Baker  v.  Di-ake,  supra.  The  rule  of  dam- 
ages as  laid  down  in  Baker  v.  Drake,  in 
cases  where  the  stock  was  purchased  by  the 
broker  on  a  margin  for  plaintiff,  and  where 
the  matter  was  evidentlj'  a  speculation,  has 


been  affirmed  in  the  later  cases  in  this  court. 
See  Gruman  v.  Smith.  81  N.  Y.  25;  Colt  v. 
Owens,  90  N.  Y.  368.  In  both  cases  the  duty 
of  the  plaintiff  to  repurchase  the  stock  with- 
in a  reasonable  time  is  stated.  I  think  the 
duty  exists  in  the  same  degree  where  the 
plaintiff  had  paid  in  full  for  the  stock,  and 
was  the  absolute  owner  thereof.  In  Baker 
V.  Drake  the  learned  judge  did  not  assume 
to  declare  in  a  case  where  the  pledgor  was 
the  absolute  owner  of  the  stock,  and  it  was 
wrongfully  sold,  the  measure  of  damages 
must  be  as  laid  down  in  the  Romaine  Case. 
He  was  endeavoring  to  distinguish  the  cases, 
and  to  show  that  there  was  a  difference  be- 
tween the  case  of  one  who  is  engaged  in  a 
speculation  with  what  is  substantially  the 
money  of  another  and  the  case  of  an  abso- 
lute owner  of  stock  which  is  sold  wrongful- 
ly by  the  pledgee.  And  he  said  that  at  least 
the  former  ought  not  to  be  allowed  such  a 
rule  of  damages.  It  can  be  seen,  however, 
that  the  judge  was  not  satisfied  with  the 
rule  in  the  Romaine  Case,  even  as  applied  to 
the  facts  therein  stated.  In  his  opinion  he 
makes  use  of  this  language:  "In  a  case 
where  the  loss  of  probable  profits  is  claim- 
ed as  an  element  of  damage,  if  it  be  ever 
allowable  to  mulct  a  defendant  for  such  a 
conjectural  loss,  its  amount  is  a  question 
of  fact,  and  a  finding  in  regard  to  it  should 
be  based  upon  some  evidence."  In  order  to 
refuse  to  the  plaintiff  in  that  case,  however, 
the  damages  claimed,  it  was  necessary  to 
overrule  the  Markham  Case,  which  was 
done.  Now,  so  far  as  the  duty  to  i-epurchase 
the  stock  is  concerned,  I  see  no  difference  in 
the  two  cases.  There  is  no  material  distinc- 
tion in  the  fact  of  ownership  of  the  whole 
stock,  which  should  place  the  plaintiff  out- 
side of  any  liability  to  repurchase  after  no- 
tice of  sale,  and  should  render  the  defend- 
ant continuously  liable  for  any  higher  price 
to  which  the  stock  might  rise  after  con- 
version and  before  ti'ial.  As  the  same  lia- 
bility on  the  part  of  defendant  exists  in 
each  case  to  replace  the  stock,  and  as  he  is 
technically  a  wrong-doer  in  both  cases,  but 
in  one  no  more  than  in  the  other,  he  should 
respond  in  the  same  measure  of  damages 
in  both  cases;  and  that  measure  is  the 
amount  which,  in  the  language  of  Rapallo,  J., 
is  the  natural,  reasonable,  and  proximate  re- 
sult of  the  wrongful  act  complained  of,  and 
which  a  proper  degree  of  pi-udence  on  the 
part  of  the  plaintiff  would  not  have  avert- 
ed. The  loss  of  a  sale  of  the  stock  at  the 
highest  price  down  to  trial  would  seem  to 
be  a  less  natural  and  proximate  result  of 
the  wrongful  act  of  the  defendant  in  selling 
it  when  plaintiff  had  the  stock  for  an  fnvest- 
ment,  than  when  he  had  it  for  a  speculation; 
for  the  intent  to  keep  it  as  an  investment  is 
at  war  with  any  intent  to  sell  it  at  any 
price,  even  the  highest.  But  in  both  cases 
the  qualification  attaches  that  the  loss  shall 
only  be  such  as  a  proper  degree  of  prudence 


472 


MITIGATION  OF  DAMAGES. 


on  the  part  of  the  complainant  would  not 
have  averted,  and  a  proper  degree  of  pru- 
dence on  the  part  of  the  complainant  con- 
sists in  repurchasing  the  stock  after  notice 
of  its  sale,  and  within  a  reasonable  time. 
If  the  stock  then  sells  for  less  than  the  de- 
fendant sold  it  for,  of  course  the  complain- 
ant has  not  been  injured,  for  the  difference 
in  the  two  prices  inures  to  his  benefit.  If  it 
sells  for  more,  that  dift'ei'ence  the  defendant 
should  pay. 

It  is  said  that  as  he  had  already  paid  for 
the  stock  once,  it  is  unreasonable  to  ask  the 
owner  to  go  in  the  market  and  repurchase  it. 
I  do  not  see  the  force  of  this  distinction.  In 
the  case  of  the  stock  held  on  margin,  the 
plaintiff  has  paid  his  margin  once  to  the 
broker,  and  so  it  may  be  said  that  it  is  un- 
reasonable to  ask  him  to  pay  it  over  again 
in  the  purchase  of  the  stock.  Neither  state- 
ment, it  seems  to  me,  furnishes  any  reason 
for  holding  a  defendant  liable  to  the  nile 
of  damages  stated  in  this  record.  The  de- 
fendant's liability  rests  upon  the  ground  that 
he  has  converted,  though  in  good  faith,  and 
under  a  mistake  as  to  his  rights,  the  prop- 
erty of  the  plaintiff.  The  defendant  is,  there- 
fore, liable  to  respond  in  damages  for  the 
value.  But  the  duty  of  the  plaintiff  to  make 
the  damage  as  light  as  he  reasonably  may 
rests  upon  him  in  both  cases;  for  there  is  no 
more  legal  wrong  done  by  the  defendant  in 
selling  tlie  stock  which  the  plaintiff  has  fully 
paid  for  than  there  is  in  selling  the  stock 
which  he  has  agreed  to  hold  on  a  margin, 
and  which  agreement  he  violates  by  selling 
it.  All  that  can  be  said  is  that  there  is  a 
difference  in  amount,  as  in  one  case  the  plain- 
tiff's margin  has  gone,  while  in  the  other 
the  whole  price  of  the  stock  has  been  saci-i- 
ficed.  But  there  is  no  such  difference  in  the 
legal  nature  of  the  two  transactions  as 
should  leave  the  duty  resting  upon  the  plain- 
tiff in  the  one  case  to  repurchase  the  stock, 
and  in  the  other  case  should  wholly  absolve 
him  therefrom.  A  rule  which  requires  a  re- 
purchase ot  the  stock  in  a  reasonable  time 
does  away  with  all  questions  as  to  the  high- 
est price  before  the  commencement  of  the 
suit,  or  whether  it  was  commenced  in  a  rea- 
sonable time,  or  prosecuted  with  reasonable 
diligence;  and  leaves  out  of  view  any  ques- 
tion as  to  the  presumption  that  plaintiff 
would  have  kept  his  stock  down  to  the  time 
when  it  sold  at  the  highest  mark  before  the 
day  of  trial  and  would  then  have  sold  it, 
even  though  he  had  owned  it  for  an  invest- 
ment. Such  a  presumption  is  not  only  of 
quite  a  shadowy  and  vague  nature,  but  is 
also,  as  it  would  seem,  entirely  inconsistent 
with  the  fact  that  he  Avas  holding  the  stock 
as  an  investment.  If  kept  for  an  invest- 
ment, it  would  have  been  kept  down  to  the 
day  of  trial;  and  the  price  at  that  time  there 
might  be  some  degree  of  propriety  in  award- 
ing, under  certain  circumstances,  if  it  wftrA 
higher  than  when  it  was  converted.     But  to 


presume  in  favor  of  an  investor  that  he 
would  have  held  his  stock  during  all  of  a 
peiiod  of  possible  depression,  and  would 
have  realized  upon  it  when  it  reached  the 
highest  figure,  is  to  indulge  in  a  presump- 
tion which,  it  is  safe  to  say,  would  not  be 
based  on  fact  once  in  a  hundred  times.  To 
formulate  a  legal  liability  based  upon  such 
presumption  I  think  is  wholly  unjust  in  such 
a  case  as  the  present.  Justice  and  fair  deal- 
ing are  both  more  apt  to  be  promoted  by  ad- 
hering to  the  rule  which  iiuposes  the  duty 
upon  the  plaintiff  to  make  his  loss  as  light 
as  possible,  notwithstanding  the  unauthor- 
ized act  of  the  defendant,  assuming,  of 
course,  in  all  cases,  that  there  was  good  faith 
on  the  part  of  the  appellant.  It  is  the  nat- 
ural and  proximate  loss  which  the  plaintiff 
is  to  be  indemnified  for,  and  that  cannot  be 
said  to  extend  to  the  highest  price  before 
trial,  but  only  to  the  highest  price  reached 
within  a  reasonable  time  after  the  plaintiff 
has  learned  of  the  conversion  of  his  stock 
within  which  he  could  go  in  the  market  and 
repurchase  it.  What  is  a  reasonable  time 
when  the  facts  are  undisputed,  and  different 
inferences  cannot  reasonably  be  drawn  from 
the  same  facts,  is  a  question  of  law.  See 
Colt  V.  Owens,  90  N.  Y.  368;  Hedges  v.  Rail- 
road Co.,  49  N.  Y.  223. 

We  think  that  beyond  all  controversy  in 
this  case,  and  taking  all  the  facts  into  con- 
sideration, this  reasonable  time  had  expired 
by  July  1,  1878,  following  the  9th  of  May  of 
the  same  year.  The  highest  price  which  the 
stock  reached  during  that  period  was  $2,795, 
and,  as  it  is  not  certain  on  what  day  the 
plaintiff  might  have  purchased,  we  think  it 
fair  to  give  him  the  highest  price  it  reached 
in  that  time.  From  this  should  be  deducted 
the  amount  of  the  check  and  interest  to  the 
day  when  the  stock  was  sold,  as  then  it  is 
presumed  the  defendant  paid  the  check  with 
the  proceeds  of  the  sale.  In  all  this  discus- 
sion as  to  the  rule  of  damages  we  have  as- 
sumed that  the  defendant  acted  in  good  faith, 
in  an  honest  mistake  as  to  its  right  to  sell 
the  stock,  and  that  it  was  not  a  case  for 
punitive  damages.  A  careful  perusal  of  the 
whole  case  leads  us  to  this  conclusion.  It  is 
not  needful  to  state  the  evidence,  but  we  can- 
not see  any  question  in  the  case  showing 
bad  faith,  or  indeed  any  reason  for  its  exist- 
ence. The  fact  is  uncontradicted  that  the 
defendant  sold  the  stock  upon  what  its  offl- 
oers  supposed  was  the  authority  of  the  owner 
thereof  given  to  them  by  Elliott.  The  opin- 
ion delivered  by  the  learned  judge  at  gen- 
eral term,  while  agreeing  with  the  principle 
of  this  opinion  as  to  the  rule  of  damages  in 
this  case,  sustained  the  verdict  of  the  jury 
upon  the  theory  that,  if  the  plaintiff  had  gone 
into  the  market  within  a  reasonable  time, 
and  purchased  an  equivalent  of  the  stocks 
converted,  he  would  have  paid  the  price 
which  he  recovered  by  the  verdict.  This  left 
the  jury  the  right  to  fix  what  was  a  reason- 


MITIGATIOK  OF  DAMAGES. 


478 


able  time,  and  then  assume  there  was  evi- 
tlence  to  support  the  verdict.  In  truth  thei-e 
was  no  evidence  which  showed  the  value  of 
the  stock  to  have  been  anything  like  the 
amount  of  the  verdict,  for  the  evidence  show- 
ed it  was  generally  very  much  less,  and 
sometimes  very  much  more.  But  fixing  what 
Is  a  reasonable  time  ourselves,  it  is  seen  that 


the  stock  within  that  time  was  never  of  any 
such  value.  The  judgment  should  be  revers- 
ed, and  a  new  trial  granted,  with  costs  to 
abide  the  event. 

EARL,  FINCH,  and  GRAY,  JJ.,  concur. 
RUGER,  O.  J.,  and  ANDREWS  and  DAN- 
FORTH,  JJ.,  dissent. 


474 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


BALTIMORE  &  O.  R.  CO.  v.  CARR. 

(17  Atl.  1052,  71  Md.  135.) 

("uurt  of  ApiH-als  of  Maryland.    June  11,  1889. 

vVppeal  from  circuit  court,  Prince  George'a 
county. 

Aij,'upd  before  ALVEY,  C.  J.,  and 
MIELEH,  ROBINSON,  IRVING,  BRYAN, 
and  McSlIERRY,  JJ. 

John  K.  Cowen,  F.  Snoiaden  Hill,  Thos. 
Anderson,  and  W.  Viers  Bouic,  Jr.,  for  ap- 
pellant. George  Peter,  Jan.  B.  Heuderaon, 
and  William  tstanley,  for  appellee. 

ALVEY,  C.  J.  Tliis  is  an  action  on  the 
case,  brought  by  the  apiielK  e  against  tlie  ap- 
ptllaiit  lor  the  wrunglul  refusal  of  adniisHion 
of  the  foiuier  to  the  cars  of  the  latter,  and  the 
action  was  tried  upon  the  general  issue  and 
j)lea  of  not  guilty  of  the  wrong  alleged.  The 
declaraiion  contains  but  a  single  count,  in 
which  it  is  alleged  that  the  plaintiff  pur- 
chased a  ticket  for  a  passage  on  the  road  of 
the  defendant  from  the  town  of  Rockville  to 
the  citv  of  Washington,  and  return;  that  the 
plaintiff  liecame  a  pjissenger  on  the  defend- 
ant's road,  and  was  transported  from  Hock- 
ville  to  the  city  of  W'ashiugton,  and  that  on 
his  return  within  the  time  limited  by  his 
ticket  he  i>resented  himself  at  the  gate  in  the 
dei)ot  of  the  defendant  in  Washington  city, 
in  proper  time  to  take  a  return  train  to  the 
town  of  Jiockville,  scheduled  to  leave  the 
dej)ot  at  5:81  P.  M.,  and  that  he  was  refused 
by  the  gate-keeper  admission  to  such  train. 
And  it  is  then  alleged  that  the  plaintiff  was 
entitled  by  virtueof  his  ticket  to  pass  through 
the  gate,  for  the  purpose  of  getting  on  the 
train,  to  be  conveyed  from  Washington  city 
to  Rockville,  and  that  it  "was  the  duty  of  the 
defendant  to  provide  competent  and  polite 
servants  and  agents  to  attend  and  to  have 
charge  of  the  gate  through  which  passengers 
were  compelled  to  pass  to  get  on  the  said 
train  of  cars;  yet  the  defendant,  unmindful 
of  its  duty  in  this  regard,  refused  to  permit 
the  plaintiff  to  pass  through  the  said  gate  to 
enter  the  cars  so  as  to  be  conveyed  from 
"Washington  city  to  the  town  of  Rockville, 
and  neglected  to  provide  competent  and  polite 
servants  and  agents  to  have  charge  of  the 
gate  by  which  j)asseugers  obtained  access  to 
the  cars,  but  had  a  rude,  impolite,  and  in- 
comptlent  servant  in  charge  of  said  gate, 
who  then  and  there  refused  to  permit  the 
plaintiff  to  pass  through-  said  gate  to  the 
said  train  of  cars,  and  with  foice  pushed  back 
the  plaintiff,  and  was  guilty  of  other  rude, 
impolite,  and  improper  treatment  of  the 
plaintiff,  by  reason  whereof  the  plaintiff  was 
prevented  from  attending  to  his  business  en- 
gagements in  the  town  of  Rockville,  and  the 
feelings  of  the  plaintiff  were  greatly  injured 
and  outraged,  and  he  was  subjected  to  great 
vexation,  indignity,  and  disgrace,  and  com- 
pelled and  forced  to  remain  in  the  city  of 
Washington  until  a  late  hour  in  the  night,  to- 
wit,  the  hour  of  ten  minutes  past  ten  o'clock; 
and  the  plantiff  therefore  brings  suit,"  etc. 


The  proof  shows  that  the  plaintiff,  with  a 
ticket  entitling  him  to  a  return  passage  to 
Rockville,  presented  himself  at  the  gate  in  the 
depot  at  Washington  city  giving  aiimission 
to  passengers  to  departing  trains,  and  sought 
admission  to  the  train  that  lelt  the  depot,  ac- 
cording to  published  time-table,  at  5:31  P.  M. 
for  lloekville  and  other  points  on  the  Metro- 
politan road.  The  plaintiff  himself  testilies 
that  he  reached  the  gate  some  two  or  three 
minutes  before  the  time  for  the  train  tostart; 
but  whether  the  plaintiff  presented  liimself 
at  the  gate  immediately  before  or  immediately 
after  the  signal  by  gong  for  excluding  jias- 
sengers  at  the  gate  for  the  particular  train, 
would  seem  to  be  left  in  doulit,  the  evidence 
upon  this  point  being  in  conflict.  The  plain- 
tiff testifies  that  he  did  not  hear  the  gong, — 
the  signal  for  the  train  to  start;  but  he 
swears  that  the  train  had  not  left  the  depot, 
and  that  he  had  tiiue  within  which  he  could 
have  reached  and  entered  the  train,  if  he  had 
been  allowed  to  pass  the  gate  as  he  desired 
to  do.  The  proof  on  the  part  of  the  defend- 
ant is  that  the  gong  had  si^unded,  but  the- 
train  was  delayed  some  two  or  three  minutes 
in  attaching  and  taking  out  some  extra  cars; 
and  that  it  is  the  duty  of  the  gate-keei);'r  to 
act  on  the  signal  given  by  the  sound  of  the 
gong,  and  that  he  knew  nothing  of  the  delay 
that  would  be  caused  by  the  taking  out  t\\Q 
extra  cars.  The  plaintitf  swears  that  he  was 
not  only  prevented  from  having  access  to  the 
train,  but  that  he  was  rudely  resisted,  and 
was  struck  by  the  gate-keeper,  though  lie  says 
he  was  not  physically  injured. 

Upon  the  whole  evidence  the  defendant 
offered  three  prayers  for  instruction  to  the 
jury,  all  three  of  which  were  rejected  by 
the  court;  and  the  court  substitutetl  its  own 
instructions,  intended  to  cover  the  whole 
case,  in  the  following  terms:  "If  the  jury 
find  th)t  the  plaintiff  liad  purchased  a  ticket 
from  Washington  to  Rockville,  and  intended 
to  leave  on  the  5:31  p.  m.  train,  but  that  by 
the  instructions  given  by  defendant  to  its 
gate-keeper  passengers  were  not  allowed  to 
pass  through  the  gate  after  the  last  gong  had 
sounded  for  the  departure  of  the  train,  in  or- 
der to  take  such  train,  and  that  the  last  gong 
had  sounded  for  the  departure  of  the  5:  31  P. 
M.  train  before  the  plaintiff  endeavored  to 
pass  through  the  gate,  then  the  plaintiff  is 
not  entitled  to  recover,  unless  the  jury  find 
that  the  gate-keeper  used  unnecessary  force 
to  prevent  the  plaintiff"  from  passing  through 
the  gate;  and,  if  the  jury  find  that  such  un- 
necessary force  was  used,  then  the  plaintiff 
is  entitled  to  such  damage  as  may  compensate 
him  for  the  injury  to  his  person  and  feelings 
that  resulted  from  such  unnecessaiy  force. 
(2)  But  if  the  jury  find  that  the  plaintiff  had 
arrived  at  the  gate  before  the  last  gong  had 
sounded,  and  had  his  ticket,  which  was  duly 
exhibited  to  the  gate-keeper,  but  was  refused 
entrance  to  the  train,  then  the  plaintiff  is 
entitled  to  such  damages  as  the  jury  may 
find  would,  under  all  the  circumstances, 
compensate  him  for  such  refusal."     It  was 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


47J 


under  these  instructions  that  the  verdict  was 
found  for  the  plaintiff.  Exception  was 
tal<en  to  the  instructions  given,  and  also  to 
the  refusal  to  grant  the  prayers  offered  by 
the  defendant.  The  lirst  of  the  defendant's 
prayers  would  seem  to  be  based  upon  the 
theory  that  this  is.  in  substance  at  least,  an 
action  upon  the  contract  of  carriage  of  tlie 
plaintiff  over  the  road  of  the  defendant. 
13ut  this  is  in  form  an  action  of  tort.  The 
contract,  it  is  true,  entitled  the  plaintiff  to 
admission  to  tlie  cars,  and  gave  rise  to  the 
duty  on  the  part  of  the  defendant  to  allow 
such  admission  under  proper  circumstances; 
but  in  cases  of  the  class  to  which  this  be- 
longs the  refusal  or  neglect  to  perform  that 
duty,  as  well  as  the  negligent  performance 
of  it,  furnishes  a  ground  of  action  in  tort. 
In  such  case  both  the  non-feasance  and  the 
misfeasance  constitute  a  wrongful  act,  for 
which  the  remedy  may  be  either  by  action  on 
the  contract  or  in  tort,  at  the  option  of  the 
party  injured.  Boorman  v.  Brown,  3  Q.  B. 
526;  and  same  case  aflftrmed  in  the  house  of 
lords,  (11  Clark  &  F.  1.)  The  prayer,  as  an 
abstract  proposition,  may  be  correct  enougii, 
but  it  would  likeiy  have  a  tendency  to  mis- 
lead in  a  case  like  the  present,  and  therefore 
there  was  no  error  in  rejecting  it.  Nor  do 
we  tliink  tiiere  was  error  in  rejecting  the 
second  prayer  of  the  defendant.  This  prayer 
has  reference  to  tlie  power  of  the  defendant 
to  make,  and  to  require  to  be  conformetl 
to,  reasonable  rules  and  regulations  for  the 
admission  of  passengers  to  its  trains  while  in 
the  depot.  That  the  enforcement  of  reason- 
able rules  and  regulations  for  the  admission 
to  trains  In  a  crowded  depot,  where  trains 
are  constantly  departing  for  different  points 
and'  directions,  is  an  actual  necessity,  does 
not  admit  of  question  or  doubt.  Such  regu- 
lations are  not  only  necessary  to  prevent 
confusion  and  for  the  preservation  of  order, 
but  are  necessary  for  the  guidance  and  pro- 
tection of  the  traveling  public.  And,  such 
being  the  case,  the  railroad  company  must 
have  power  to  make  and  require  to  be  ob- 
served such  reasonable  rules  and  regulations. 
But  such  rules  and  regulations  must  always 
be  enforced  with  due  regard  to  the  rights  of 
the  passenger.  In  the  tirst  place,  tlie  rules 
and  regulations  must  not  be  of  a  nature  to  be 
unreasonably  obstructive  of  the  rights  and 
convenience  of  the  passenger;  nor  should 
they  be  enforced  in  an  arbitrary  and  unrea- 
sonable manner,  to  the  unnecessary  hindrance 
and  delay  of  the  passenger,  or  in  a  man- 
ner to  subject  him  to  indignity  or  unneces- 
sary  annoyance.  And  in  this  case,  though 
the  gate-keeper  may  have  been  mistaken  as 
to  the  departure  of  the  train  in  fact,  or  as  to 
his  duty  under  the  rules  and  regulations  of 
the  depot,  yet,  if  the  circumstances  were 
such,  at  the  time  the  plaintiff  presented  him- 
self at  the  gate,  as  to  entitle  him  to  admis- 
sion to  the  train  then  still  being  in  the  depot, 
and  before  it  had  started,  such  mistake  of  the 
gate-keeper  could  afford  no  defense  to  the 
right  of  the  plaintiff  to  recover.     Eailroad 


Co.  V.  Blocher,  27  Md.  277.  But,  in  respect 
to  the  right  of  the  defendant  to  enforc  rules 
and  regulations  for  admission  to  its  trains  in 
the  depot,  the  instructions  of  the  court  were 
as  favorable  as  the  defendant  could  possibly 
ask.  The  defendant  obtained  in  those  in- 
structions substantially  everything  that  was 
sought  by  its  second  and  third  prayers,  and 
therefore  there  was  no  error  in  refusing 
those  prayers  as  presented  by  the  defendant. 
We  think,  however,  there  was  error  in  the 
second  instruction  of  the  court,  in  respect  to 
the  question  of  damages.  The  jury  were  in- 
structed that,  if  they  found  for  the  plaintiff 
for  the  refusal  to  pass  him  through  the  gale, 
then  he  was  entitled  to  such  damages  as  they 
might  find  would,  under  all  the  circum- 
stances, compensate  him  for  such  refusal. 
This  left  the  whole  question  of  damag-s  at 
large,  without  definition  by  the  court,  to  the 
discretion  of  the  jury,  and  without  any  cri- 
terion to  guide  them.  What  compensation 
would  embrace — whether  actual  and  neces- 
sary expenses  incurred  by  reason  of  the  re- 
fusal, or  the  mere  delay,  or  disappoint  nent 
in  pleasure,  or  the  possible  loss  in  business 
transactions,  however  remote  or  indirect,  or 
for  wounded  feelings — were  matters  thrown 
open  to  the  jury,  and  they  were  allowed  to 
speculate  upon  them  without  restraint.  This 
is  not  justified  by  any  well-established  rules 
of  law.  In  the  case  of  Knight  v.  Egerton,  7 
Exch.  407.  where,  in  effect,  such  an  instruc- 
tion was  given,  tlie  court  of  exchequer  held 
it  to  be  wholly  insufficient,  "and  that  it  was 
the  duty  of  the  judge  to  inform  tlie  jury  what 
was  the  true  measure  of  damages  on  the  is- 
sue, whether  the  point  was  taken  or  not;" 
and  the  court  directed  a  new  trial  because  of 
tlie  indefinite  instruction  as  to  the  true  meas- 
ure of  damages.  The  rule  l)y  which  damages 
are  to  be  estimated  is,  as  a  general  jirincipie, 
a  question  of  law  to  be  deeded  by  the  court; 
that  is  to  say,  the  court  must  decide  and  in- 
struct tiie  jury  in  respect  to  what  elements, 
and  within  what  limits,  damages  may  be  esti- 
mated in  the  paiticular  action.  Haiker  v. 
Dement,  9  Gill,  7;  Hadley  v.  Baxendale,  9 
Exch.  341,354.  The  simple  question  whether 
damages  have  been  sustained  by  the  breach 
of  duty  or  the  violation  of  right,  and  the  ex- 
tent of  damages  sustained  as  the  direct  con- 
sequences of  such  breach  of  duty  or  violation 
of  right,  are  matters  within  the  province  of 
the  jury.  But  beyond  this  juries,  as  a  gen- 
eral rule,  are  not  allowed  to  intrude,  as  by 
such  intrusion  all  certainty  and  fixedness  of 
legal  rule  would  be  overthrown  and  destroyed. 
In  a  case  like  the  present  the  rule  for  measur- 
ing the  damages  is  fixed  and  determinate,  and 
should  be  applied  to  all  cases  alike,  except  in 
those  cases  where  there  may  be  malice  or  cir- 
cumstances of  aggravation  in  the  wrong 
complained  of,  for  which  the  damages  may 
be  enhanced.  Indeed,  it  is  of  the  utmost  im- 
portance that  juries  should  be  explicitly  in- 
structed as  to  the  rules  by  which  they  are  to 
be  governed  in  estimating  dama.fes;  for,  as 
it  was  justly  observed  by  the  court  in  Had- 


476 


EXCIISSIVE  OR  INSUFFICIENT  DAMAGES. 


ley  V.  Eaxendale,  supra,  "if  the  jury  are  left 
without  definite  rule  to  guide  them,  it  will, 
in  most  cases,  manifestly  lead  to  the  greatest 
injustice."  In  cases  of  this  character  the 
jury  can  only  give  such  dam  igcs  as  were  the 
ininiedi.ite  consequences  naturally  resulting 
from  the  act  complained  of,  with  the  right 
to  allow  exemplary  damages  for  any  malice, 
or  the  use  of  unnecessary  force,  in  the  com- 
mission of  the  wrong  alleged.  Railroad  Co. 
V.  iilocher,  supra.  The  expenses  incuned 
by  tile  plaintill',  occasioned  by  the  refusal 
of  the  defendant  to  admit  him  to  the  train, 
such  as  the  expense  of  a  ticket  to  travel  upon 
another  train,  and  hotel  expenses  incurred  by 
reason  of  the  delay,  may  be  allowed  for;  and 


mere  inconvenience  may  be  ground  for  dam- 
age, if  it  is  such  as  is  capabh^  of  being  stated 
in  a  tangible  form,  and  assessed  at  a  money 
value;  and  so  for  any  actual  loss  sustained 
in  matters  of  business  that  can  be  shown  to 
have  been  occasioned  as  the  direct  and  neces- 
sary consequence  of  the  wrongful  act  of  the 
defendant  made  the  ground  of  action.  Denton 
v.  Railway  Co.,  5  El.  &  Bl.  860;  Hamlin  v. 
Railway  Co.,  1  Hurl.  &  N.  408;  Hobbs  v. 
Railway  Co.,  L.  R.  10  Q.  B.  Ill;  Wood's 
Mayne,  Dam.  398,  3U9;  2  (Jreenl.  Ev.  §  254. 
For  the  error  in  the  second  instruction  of 
the  court,  with  respect  to  the  measure  of 
damages,  the  judgment  of  the  court  below 
must  be  reversed,  and  a  new  trial  awarded. 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


477 


IJMBURG  V.  GERMAN  FIRE  INS.  CO.  OF 

PEORIA.  1 

(57  N.  W.  626,  90  Iowa,  709.) 

Supreme  Court  of  Iowa.     Jan.  26,  1894. 

Appeal  from  superior  court  of  Keokuk;    H. 

Bank,  Jr.,  Judge. 

Action  on  a  policy  of  insurance.  Jury  trial; 
verdict  and  judgment  for  plaintiff.  Defend- 
ant appeals. 

James  C.  Davis,  for  appellant.  J.  F.  Smith, 
for  appellee. 

KINNE,   J.     ♦         *         *         *         ♦         • 
5.  The  jury  were  told  by  the  court  in  an 
instruction  that  if  they  found  that  the  build- 

1  Portion  of  opinion  omitted. 


ing  was  not  totally  destroyed,  and  it  could  be 
repaired  at  an  expense  of  .$200  to  .$2.50,  then 
plaintiff's  damages  Avould  be  limited  to  the 
amount  it  would  have  cost  to  repair  said 
building,  and  put  the  same  in  as  good  condi- 
tion as  before  the  fire  occurred,  with  0  per 
cent,  interest  per  annum  thereon.  Under  the 
provisions  of  the  policy  this  instruction  was 
proper,  and,  whether  it  was  so  or  not,  the 
jury  were  bound  to  follow  it.  The  undis- 
puted evidence  was  that  for  $250  the  build- 
ing could  have  been  made  as  good  as  it  was 
before  the  fire.  The  jury  disregarded  the 
court's  instruction,  and  found  for  plaintiff 
for  the  full  amount  of  the  policy,  with  in- 
terest. The  court  should  have  set  the.  verdict 
aside  for  the  reasons  given.     Reversed. 


478 


EXCESSIVE  OK  INSUFFICIENT  DAMAGES. 


ROBINSON  V.  TOWN  OF  WAUPACA. 

(46  N.  W.  SOU.   77  Wis.  544.) 

Snproino   Court   of   Wisconsin.      Oct.    14,    1890. 

Ai)poal  from  circuit  court,  Waupaca 
county. 

Tiiis  is  an  action  to  recover  damajres  for 
;,  .sonal  injuries  to  the  plaintiff,  aile<;ed 
to  have  been  caused  by  a  defective  liij;li- 
way  in  the  defendant  town.  On  June  6, 
1.SS6,  tlie  plaintiff  was  riding  witli  her  hus- 
liand  on  such  higliway  in  a  veliiclc  on 
two  wheels,  called  a  "dog-cart,"  drawn 
by  one  horse,  then  being  driven  by  her 
husband.  When  the  horse  was  walking 
briskly,  one  wheel  of  the  cart  struck  a 
stone  a  few  inches  high,  firmly  fi.xed  in  the 
ground,  and  extending  from  the  side  of 
the  traveled  track  to  within  three  or  four 
inches  of  one  of  the  wagon  ruts  in  the 
track;  and,  l)^'  reason  of  the  concussion, 
plaintiff  was  thrown  from  tlie  cart,  and 
received  the  Injuries  complained  of.  On 
the  trial  of  tlie  cause,  the  court  allowed 
witnesses  for  the  defendant  to  testify, 
against  objection  by  the  iilaintiff,  that, 
in  their  opinion,  carts  like  the  one  in  wliicli 
plaintiff  was  riding  at  the  time  she  was 
injured  are  unsafe  for  the  use  of  two  per- 
sons riding  over  ordinary  country  roads. 
The  trial  resulted  in  a  verdict  for  the  plain- 
tiff, assessing  her  damages  at  .f  1G7.  The 
I)laintiff  moved  for  a  new  trial,  mainly  on 
the  ground  that  the  damages  so  assessed 
are  inadequate  to  compensate  her  for  the 
injury  she  proved  she  sustained.  The  mo- 
tion was  denied,  and  judgment  w^as  there- 
upon entered  for  the  plaintiff,  pursuant  to 
the  verdict,  from  which  judgment  she  ap- 
peals to  this  court. 

Cnte,  Jones  &  Sanborn,  for  appellant. 
Reed,  Grace  &  Rock,  for  respondent. 

LYON,  J.,  (after  stnting  the  facts  as 
ahovf.)  Connspl  for  the  plaintiff  clainis  a 
rpversal  of  the  judghient  on  two  grounds. 
These  are  that  the  court  erred  in  allowing 
witnesses  for  the  town  to  testify  that,  in 
their  opinion,  the  cart  in  which  the  plain- 
tiff was  riding  was  unsafe  for  the  use  of 
two  persons  riding  together  in  it  on  or- 
dinary country  roads,  and  that  the  dam- 
ages awarded  the  plaintiff  are  grossly  in- 
ade()uate  to  compensate  her  for  the  inju- 
ries she  received. 

1.  Undoubtedly  it  was  error  to  admit 
testimony  of  the  oT)iuions  of  witnesses 
that  the  cart  was  thus  unsafe.  That  was 
a  question  for  the  jury,  upon  all  the  facts 
in  the  case.  This  court  so  held  in  Kelley 
V.  Fond  du  Lac,  .*^l  Wis.  179;  Oleson  v. 
Tolford,  37  Wis.  327;  Griffin  v.  Town  of 
Willow,  43  Wis.  .509;  and  other  cases.  But 
the  jury  found  for  the  plaintiff,  and,  in  or 
der  to  do  so,  they  must  necessarily  have 
found  that  the  cart  was  a  proper  vehicle 
to  be  used  by  the  plaintiff  and  her  hus- 
band at  the  place  where  she  was  injured. 
Hence  the  testimony  thus  erroneously  ad- 
mitted did  not  prejudice  or  harm  the  plain- 
tiff, and  the  error  in  admitting  it  is  not 
sufficient  ground  for  reversing  the  judg- 
ment. 

n.  Were  the  damages  which  the  jury 
awarded   the  plaintiff  so   inadequate    to 


compensate  her  for  the  injuries  she  sus- 
tained that  it  was  the  duty  of  the  circuit 
court  to  set  aside  the  verdict  for  that  rea- 
son ?  That  the  court  may,  and  in  a  |)roper 
case  should,  set  aside  a  verdict  for  inade- 
quacy of  damages  and  award  a  new  trial, 
is  not  questioned.  This  court  so  held  in 
Emmons  v.  Sheldon,  2G  Wis.  G4S,  and 
Whitney  v.  City  of  Milwaukee.  05  Wis.  409, 
27  N.  W.  Rep.  39.  But,  to  justify  the  inter- 
ference of  the  court  with  the  verdict,  it 
must  appear  from  the  testimony  that  the 
damages  awarded  are  so  grossly  dispro- 
portionate to  the  injury  that,  in  award- 
ing them,  the  jury  must  have  been  influ- 
enced by  a  perverted  judgment.  The 
court  was  able  thus  to  characterize  the 
verdict  in  Emmons  v.  Sheldon,  for  the 
damages  there  awarded  were  but  $.5, 
(wMiich  charged  the  plaintiff  with  the  costs 
of  the  action.)  although  it  was  proved 
that  the  plaintiff  suffered  a  most  serious 
bodily  injury.  Thei-e  seems  to  have  been 
no  controversy  as  to  the  extent  of  such 
injury.  And  so  in  Whitney  v.  City  of  Mil- 
waukee the  undisputed  evidence  proved 
that  the  plaintiff  was  so  seriously  injured 
that  the  damages  awarded  by  "the"  jury 
therefor  were  grossly  inadequate  com- 
pensation, and  so  small  that  the  plaintiff 
was  chargeable  v\ith  the  costs,  which  ex- 
ceeded the  damages  awarded.  This  court 
was  able  to  say  that  the  verdict  was  per- 
verse, and  that,  quoting  from  the  opinion 
delivered  by  Mr.  Justice  Okton,  "such  a 
verdict  is  trifling  with  a  case  in  court  and 
public  justice,  and  unworthy  of  twelve 
good  and  lawful  men,  and  is  justly  calcu- 
lated to  cast  odium  on  the  jury  system 
and  jury  trials."  We  adhere  "to 'the  rule 
established  in  those  cases.  Hence  the 
question  is,  does  the  testimony  bring  this 
case  within  the  rule?  In  the  considera- 
tion of  this  question,  we  must  assume 
that  the  jury  found  every  fact  going  to 
mitigate  or  reduce  the  damages  which 
they  could  properly  find  fi'om  the  proofs. 
The  testimony  tends  to  show  that  the 
plaintiff  was  to  some  extent  an  invalid 
before  she  was  injured,  and  that  the  pain 
and  disability  she  lias  suffered  since  the 
injury  should,  in  i)art  at  least,  be  .at- 
tributed to  i)revious  ill  health.  Then  the 
circumstances  of  the  injury  and  her  condi- 
tion presently  thereafter' tend  to  show 
that  the  injury  was  not  so  severe  as 
f^laimed.  There  is  considerable  testimonj- 
oi  the  alcove  character,  and  we  think  it 
sufticient  materially  to  mitigate  her  claim 
for  damages.  Under  the  testimony,  there- 
fore, there  is  a  wide  margin  for  the  jury 
in  assessing  damages.  Probably  a  ver- 
dict for  a  much  larger  sum  could  have  been 
lield  not  excessive.  Perhaps,  if  the  plain- 
tiff's testimony  as  to  the  extent  of  her  in- 
juries stood  alone, it  oughtto  be  held  that 
the  damages  are  inadequate.  But  in  view 
of  all  the  testimony,  and  of  the  fact  that 
the  verdict  has  successfully  passed  the 
scrutiny  of  the  learned  circuit  judge,  we 
do  not  feel  warranted  in  saying  that  it  is 
a  perverse  verdict.  Hence,  although  we 
might  have  been  better  satisfied  had  a 
somewhat  greater  sum  been  awarded,  we 
are  not  at  liberty  to  disturb  the  verdict. 
The  judgment  of  the  circuit  court  must  be 
aUirmed. 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


479 


CARTER  V.  WELLS,  FAUCO  &  CO. 

(64  Fed.  1005.) 

Circuit  Court,  S.  D.  California.     December  10, 
18D4. 

No.  5(31. 

This  was  an  action  by  James  A.  Carter 
against  Wells.  Fargo  «&  Co.  for  damages  for 
personal  injuries.  The  jury  gave  a  verdict 
for  the  plaintiff  for  one  dollar.  Plaintiff 
moves   for  a  new  trial. 

Wellborn  &  Huttou,  for  plaintiff.  Fills- 
bury,  Blanding  &.  Hayne  and  Graves,  O'Mel- 
veny  &  Shaukland,  for  defendant. 

ROSS,  District  Judge.  This  action  was 
brought  to  recover  damages  in  the  amount  of 
$10,000  for  personal  injuries  alleged  to  have 
been  sustained  by  the  plaintiff  by  the  negli- 
gence of  the  defendant.  The  verdict  of  the 
jury  in  favor  of  the  plaintiff  necessarily  in- 
cluded a  finding  that  the  defendant  was  neg- 
ligent, and  that  there  was  no  contributory 
negligence  on  plaintiff's  part,  as  set  up  in  de- 
fense of  the  action.  There  was  much  evi- 
dence in  the  case  tending  to  show  that  there 
was  no  negligence  on  the  part  of  the  de- 
fendant, and,  further,  that  there  was  such 
contributory  negligence  on  plaintiff's  part  as 
should  prevent  a  recovery  by  him;  and,  had 
the  verdict  been  in  favor  of  the  defendant  on 
either  or  both  of  those  propositions,  there 
would  be  no  interference  with  it  by  the 
coui't,  for  the  evidence  in  respect  to  those 
matters  was  substantially  conflicting,  and  the 
issues  in  respect  thereto  were  for  the  deter- 
mination of  the  jury,  under  appropriate  in- 
structions from  the  court,  which  were  given. 
But  the  verdict  being,  in  effect,  that  plain- 
tiff was  injured  by  the  defendant's  negli- 
gence, without  contributory  negligence  on 
his  own  part,  he  was  manifestly  entitled  at 
the  hands  of  the  jury  to  substantial  dam- 
ages. The  evidence  was  without  conflict  that 
the  collision  which  caused  the  plaintiff's  in- 
jury threw  him  from  a  scaffold  eight  or  ten 
feet  high  (on  which  he  was  at  the  time  work- 
ing, for  two  dollars  per  day)  to  the  ground, 
his  head  and  shoulder  striking  on  a  large  rock, 
from  which  he  was  picked  up  in  an  uncon- 
scious condition;  and  that,  after  regaining 
consciousness,  he  was  carried  to  the  county 
hospital,  where  he  remained  about  five  weeks, 
two  weeks  of  which  time  he  was  confined  to 
his  bed.  These  facts  of  themselves  entitled 
the  plaintiff,  under  the  verdict,  to  substantial 
•damages,  and  not  to  the  merely  nominal  sum 
of  one  dollar.  The  head  and  neck  of  the 
plaintiff  were,  at  the  time  of  the  trial,  much 
bent  to  one  side,  and  his  walk  was  that  of  a 
paralytic.  The  defendant  introduced  many 
witnesses  who  testified  that  hi",  appearance 
and  movements  were  about  the  same  prior 
to  the  Injury  complained  of  as  they  were  at 
the  time  of  the  trial,  and  that  they  could  see 
110  difference  in  them.    This  testimony  on  the 


part  of  the  defendant  was  controverted  by 
many  witne.ssps  for  the  plaintiff.  The  exliibi- 
tion,  however,  that  was  made  of  the  plain- 
tiff's person  in  court,  and  the  tests"  that  were 
there  made  by  I>r.  Hughes,  amounted,  I 
think,  to  ocular  demonstration  of  the  fact  that 
the  plaintiff  could  not  possibly  have  at  that 
time  stood  upon  the  plank  and  performed 
the  work  the  evidence  without  coufliet  show- 
ed that  he  was  doing  at  the  time  of  the  ac- 
cident. 

Accepting,  as  the  court  must  for  the  pur- 
poses of  this  motion,  the  facts  to  be  that  the 
plaintiff,  without  fault  of  his  own,  was  in- 
jured by  the  negligence  of  the  defendant,  it 
cannot  permit  a  verdict  to  stand  that  awards 
him  damages  in  name  only.  While  the  court 
should  and  always  will  be  careful  not  to 
usurp  the  functions  of  the  jury,  it  is,  never- 
theless, its  duty  to  protect  parties  from  im- 
proper verdicts,  rendered  through  misconcep- 
tion, prejudice,  passion,  or  other  wrong  in- 
fluences. Lancaster  v.  Steamship  Co.,  20 
Fed.  233;  Gaither  v.  Railroad  Co..  27  Fed. 
.j45;  Muskegon  Nat.  Bank  v.  Northwestern 
Mut.  Life  Ins.  Co.,  19  Fed.  405;  Kirkpat- 
rick  V.  Adams,  20  Fed.  292.  In  Field  on  Dam- 
ages (page  886)  it  is  said:  "It  is  less  usual 
for  the  court  to  interfere  with  the  finding  of 
the  jury  for  inadequate  than  for  excessive 
damages,  though  it  has  the  power  to  do  so. 
*  *  *  But  a  verdict  may  generally  be  set 
aside  for  inadequacy,  upon  the  same  grounds 
that  warrant  the  court  in  interfering  where 
they  are  excessive." 

To  the  same  effect  is  Gaither  v.  Railroad 
Co.,  27  Fed.  545. 

And  in  Sedg.  Meas.  Dam.  (volume  2,  p.  656) 
it  is  said:  "The  forbearance  of  the  court  to 
interfere  with  the  jury  is  so  great  that,  in  ac- 
tions of  tort,  the  general  rule  is  that  a  new 
trial  will  not  be  granted  for  smallness  of 
damages.  But  it  seems  that  if  the  jury  so  far 
disregard  the  justice  of  the  case  as  to  give  no 
damages  at  all  where  some  redress  is  clearly 
due,  the. court  will  interpose.  So  where,  in 
a  case  for  negligence  for  defendant's  servant 
driving  against  the  plaintiff,  it  appeared  that 
the  plaintiff's  thigh  was  broken,  and  consid- 
erable expense  incurred  for  surgical  treat- 
ment; the  plaintiff'  obtained  a  verdict,  dam- 
ages one  farthing;  a  new  trial  was  granted 
on  payment  of  costs;  and  Lord  Denman  said: 
'A  new  trial  on  a  mere  difference  of  opinion 
as  to  amount,  may  not  be  grantable;  but  here 
are  no  damages  at  all.'  " 

In  the  present  case  the  amount  awarded 
the  plaintiff  by  the  jury  was  practically  no 
damages  at  all;  yet  the  jury  at  the  same 
time  found,  in  effect,  that  the  plaintiff  was 
injured  through  the  negligence  of  the  defend- 
ant, without  any  contributory  negligence  on 
his  own  part.  The  evidence,  without  conflict, 
showed  that  his  injuries  by  the  fall  were  such 
as,  under  those  circumstances,  entitled  him 
to  substantial  damages.  For  these  reasons 
the  motion  for  a  new  trial  is  granted. 


480 


EXCESSIVE  OR  INSUFFIOIEXT  DAMAGES. 


PETERSON  V.  WESTERN  UNION  TEL.  CO. 

(67  N.  W.  646,  65  Minn.  18.) 

Supreme  Court  of  Minnesota.     Juno  4,  1806. 

Appeal  from  district  court,  Brown  coun- 
ty;  B.  F.  Webber,  Judge. 

Action  by  Samuel  D.  Peterson  against  the 
Western  Union  Telegraph  Company.  There 
was  a  verdict  for  plaintiff,  and  from  an  or- 
der denying  a  new  trial  defendant  appeals. 
Reversed. 

Ferguson  &  Kneeland,  for  appellant  &  L. 
Pierce,  for  respondent. 

START,  C.  J.  This  is  an  action  for  libel, 
in  which  the  plaintiff  recovered  a  verdict  for 
$5,200,  and  the  defendant  appealed  from  an 
order  denying  its  motion  for  a  new  trial. 
The  defendant  on  January  19,  1893,  received 
at  its  office  in  New  Ulm,  from  Albert  Blan- 
chard,  a  message  for  transmission  over  its 
telegraph  line  to  St.  Paul,  which  reads  thus: 
"Now  Ulm,  Minn.,  1-19,  1^93.  To  S.  D.  Peter- 
son, Care  Windsor,  St.  Paul,  Minn.:  Slip- 
pery Sam,  your  name  is  pants.  [Signed] 
Many  Republicans."  The  New  Ulm  oper- 
ator sent  the  message  over  the  wires  to  St. 
Paul,  where  it  was  taken  from  the  wire  by 
the  opei-ator,  and  delivered  to  the  plaintiff 
in  a  sealed  envelope  bearing  his  address  as 
stated  in  the  message. 

The  record  presents  three  questions  for 
our  consideration:  (1)  Was  the  message  a 
libel,  or  fairly  susceptible,  on  its  face,  of  a 
libelous  meaning?  (2)  Was  the  evidence  suf- 
ficient to  justify  the  jury  in  finding  that  the 
defendant  maliciously  published  the  suppos- 
ed libel?  (3)  Are  the  damages  awarded  so 
excessive  as  to  justify  the  conclusion  that 
the  verdict  was  the  result  of  passion  and 
prejudice?  We  answer  each  of  the  questions 
in  the  affirmative. 

1.  The  message  was,  on  its  face,  fairly 
susceptible  of  a  libelous  meaning.  The  sting 
is  in  the  word  "slippeiy."  This  word,  when 
used  as  descriptive  of  a  person,  has  a  well- 
understood  meaning.  It  means,  when  so 
used,  that  the  person  to  whom  it  is  applied 
cannot  be  depended  on  or  trusted;  that  he 
is  dishonest,  and  apt  to  play  one  false.  Cent. 
Diet.  If  such  is  the  meaning  of  the  word 
as  used  in  this  message,— and  of  this  the 
jury  were  the  judges,— it  was  clearly  libel- 
ous, because,  if  a  man  is  dishonest,  and  apt 
to  play  one  false,  he  merits  the  scorn  and 
contempt  of  all  honorable  men.  To  falsely 
publish  of  a  man  that  he  is  slippery  tends 
to  render  him  odious  and  contemptible.  Such 
a  publication  is  a  libel.  Wilkes  v.  Shields 
(Minn.)  64  N.  W.  921. 

2.  The  question  whether  or  not  the  defend- 
ant maliciously  published  the  libel  is  one  of 
some  doubt,  but  we  are  of  the  opinion  that 
it  was  a  question  for  the  jury,  under  the 
evidence.  Technically,  the  defendant  publish- 
ed the  libel  when  it  communicated  it  to  its 
operator  at  St  Paul,  but  whether  such  pub- 


lication was  wrongful  (that  is,  actionable) 
depends  on  the  further  question  whether  or 
not  it  was  privileged.  The  defendant  was  a 
common  carrier,  and  was  bound  to  transmit 
all  proper  messages  delivered  to  it  for  that 
purpose,  but  it  was  not  bound  to  send  in- 
decent or  libelous  communications.  Where 
a  proffered  message  is  not  manifestly  a  libel, 
or  susceptible  of  a  libelous  meaning,  on  its 
face,  and  is  forwarded  in  good  faith  by  the 
operator,  the  defendant  cannot  be  held  to 
have  maliciously  published  a  libel,  although 
the  message  subsequently  proves  to  be  such 
in  fact.  In  such  a  case  the  operator  cannot 
wait  to  consult  a  lawyer,  or  forward  the 
message  to  the  principal  office  for  instruc- 
tions. He  must  decide  promptly,  and  for- 
ward the  message  without  delay,  if  it  is  a 
proper  one,  and  for  any  honest  error  of  judg- 
ment in  the  premises  the  telegraph  company 
cannot  be  held  responsible.  But  where  the 
message,  on  its  face,  is  clearly  susceptible 
of  a  libelous  meaning,  is  not  signed  by  any- 
responsible  person,  and  there  is  no  reason 
to  believe  that  it  is  a  cipher  message,  and 
it  is  forwarded  under  such  circumstances  a» 
to  warrant  the  jury  in  finding  that  the  oper- 
ator, in  sending  the  message,  was  negligent 
or  wanting  in  good  faith  in  the  premises,  the 
company  may  be  held  to  have  maliciously 
published  the  libel.  A  publication  under 
such  circumstances  is  not  privileged.  The 
evidence  in  this  case  was  such  that  a  finding: 
either  way  on  the  question  whether  the  de- 
fendant maliciously  published  this  libel 
would  not  be  disturbed  by  the  court.  Wheth- 
er this  question  was  correctly  submitted  to 
the  jury  on  the  trial  of  this  case,  we  need 
not  inquire;  for  tliere  must  be  a  new  trial 
on  another  ground,  and,  if  there  was  such 
error,  it  is  not  likely  to  occur  on  the  next 
trial. 

3.  The  damages  in  this  case  are  so  exces- 
sive as  to  conclusively  show  that  the  ver- 
dict was  the  result  of  passion  and  prejudice. 
Courts  should  interfere  with  an  assessment 
of  damages  by  a  juiy  with  great  caution, 
and  sustain  the  verdict  unless  it  appears 
that  it  was  the  result  of  passion  or  preju- 
dice. But  the  verdict  in  this  case  admits 
of  no  defense.  As  correctly  stated  by  the 
trial  court  in  its  instructions  to  the  jury,  the 
sole  publication  of  the  libel  in  this  case  by 
the  defendant  was  in  making  it  known  to 
its  own  agent  at  St.  Paul,  and  the  damages 
of  the  plaintiff  were  limited  to  such  as  he 
sustained  by  reason  of  the  publication  to 
such  agent.  In  view  of  the  fact  that  such 
agent  could  not  disclose  the  contents  of  the 
libel  without  becoming  a  criminal  and  ex- 
posing himself  to  serious  punishment,  and 
that  there  is  no  evidence  to  justify  the  in- 
ference that  the  contents  of  the  message 
ever  reached  the  public,  except  through  the 
plaintiff,  a  verdict  assessing  his  damages 
at  ,$5,200  is  simply  farcical.  It  can  only  be 
accounted  for  on  the  ground  that  it  was  the 
result   of    passion    or    prejudice.     The    trial 


EXCESSIVE  OK  INSUFFICIENT  DAMAGES. 


481 


court  seems  to  have  regarded  the  damages 
so  excessive  as  to  .iustify  a  new  trial,  ex- 
cept for  the  fact  that  this  is  the  second  ver- 
dict in  the  case,  and  tliat  one  reason  for  set- 
ting aside  the  former  verdict  was  that  the 
damages  were  excessive.  As  a  rule,  the 
court  will  not  set  aside  a  second  verdict  on 
account  of  excessive  damages,  but  where, 
LAW  DAM. 2d  Ed.— 31 


as  in  this  case,  the  verdict  is  controlled  by 
no  reason,  supported  by  no  justice,  and  is 
manifestly  the  result  of  passion  and  preju- 
dice, it  is  the  duty  of  the  court  to  set  it 
aside,  no  matter  how  many  similar  verdicts 
may  have  been  previously  returned  in  the 
case.  Order  reversed,  and  a  new  trial  grant- 
ed. 


4S2 


EXCESSIVE  OK  INSUFFICIENT  I)AMA(iES. 


LOnSVILLE  SOUra.  R.  00.  V.  MINOGUE. 

(14  S.  AV.  357.  90  Ky.  369.) 
Cciiiri  of  Appeals  of  Kentucky.      Sept.  13,  1890. 

Appeal  from  circuit  court,  Shelby  coun- 
ty. 

"To  be  officially  reported.  " 

L.  C.  Willis,  E.  Frnzier,  and  Thos.  W 
Bullitt,  for  appellant.  Gilbert  &-  Force, 
Mutt  O'Doherty,  and  R.  C.  Davis,  for  ap- 
pellee. 

HOT/r.  C.  J.  A  train  of  the  appellant 
wa.s  delayed  by  the  air-brake.s  failing  to 
work.  It  was  overtaken  by  a  construc- 
tion train  of  the  company,  which  w;is 
known  to  those  in  charge  of  the  passen- 
ger-train to  be  but  a  few  minutes  behind 
it,  and  a  collision  occurred,  the  only  dam- 
age to  the  passenger-train  being  the  de- 
struction of  the  rear  platform  of  its  rear 
car.  The  appellee,  Mary  J.  Minogue,  who 
was  a  passenger  upon  it,  was  by  the  jar 
of  the  collision  thrown  from  her  seat  to 
the  floor  of  the  car  in  which  she  was  rid- 
ing; and  for  the  injuries  she  thereby  sus- 
tained she  brought  this  action  for  dam- 
ages, averring  that  they  resulted  from  the 
gross  neglect  of  the  appellant's  agents 
who  were  operating  the  trains.  It  is 
claimed  this  neglect  consisted  in  failing  to 
exercise  care  in  flagging  the  coming  train. 
The  evidence  is  somewhat  conflicting  as 
to  wliether  this  was  done  in  time  to  have 
enabled  it  to  stop  before  overtaking  the 
passenger  train;  but  whether  the  fault 
lay  in  neglect  in  this  respect,  or  in  the  rear 
ti'ain,  if  it  had  sufficient  notice  to  enable 
it  to  do  so,  failing  to  check  up,  need  not 
I>e  considered,  because,  whether  the  one  or 
the  other,  the  testimony  is  of  such  a  char- 
acter as  authorized  the  question  of  the  ex- 
istence or  non-existence  of  gross  neglect 
upon  the  part  of  the  company's  agents  to 
be  submitted  to  the  jury.  They  returned 
a  verdict  for  $10,000.  It  is  urged  that  this 
verdict  is,  in  view  of  the  evidence,  so  ex- 
cessive that,  conceding  it  embraces  both 
comi)ensatory  and  punitive  damages,  yet 
this  court  should  reverse  the  judgment. 
The  existence  of  ordinary  neglect  in  such  a 
case  authorizes  compensatory  damages, 
while  gross  neglect  permits  the  jury  to 
award  those  which  are  both  compensa- 
tory and  punitive.  In  this  instance,  the 
jury,  if  they  tiiought  proper,  were  author- 
ized l)y  the  instructions  to  And  both. 
Whether  t'ley  have  gone  beyond  a  reason- 
able limit  must  be  determined  by  the  con- 
duct of  the  company's  agents  connected 
with  the  accident,  and  the  character  of  the 
ai)pellee's  injuries.  While  the  rule  for  the 
mcnsui-ement  of  compensatory  damages 
le;i\(  s  tiie  matter  largely  to  the  discretion 
of  the  jury,  yet  the  finding  must  be  within 
the  confines  of  reason.  So,  too.  must  ex- 
emplary damages  be  reasonably  adequate 
to  the  degree  of  fault.  The  appellee  sus- 
tained external  bruises,  and  her  nervous 
system  was  greatly  shocked.  There  is  evi- 
dence tending  to  show,  however,  that  it 
liad  been  somewhat  impaired  by  previous 
e  ent  .  I  nun  diatdy  Jititr  i\\^  accident, 
she  walked  to  a  friend's  house  near  by, 
and   soon  after  rode  home  in  a  vehicle,  a 


distance  of  several  miles.  She  was  con- 
fined to  her  bed  for  seven  or  eight  weeks, 
and  suffered  from  nervousness  and  sleep- 
lessness. Since  she  left  her  bed,  she  liaH 
walked  about  her  room,  and  been  to  town 
once  or  twice,  but  has  been  unable  to  do 
any  work.  The  accident  ijccurred  in  Oc- 
tober; the  case  was  tried  in  March  follow- 
ing; and  this,  briefly  stated,  was  her  con- 
dition during  that  period.  None  of  her 
bones  were  broken,  but  at  one  time  since 
the  accident,  if  not  ever  since,  she  has  been 
troubled  with  partial  paralysis,  or  an  in- 
sensibility, in  one  leg,  from  tlie  knee  down. 
The  probable  duration  of  her  injuries  is 
not  shown  by  the  testimony.  Whether 
they  are  of  a  permanent  character  does 
not  appear.  The  medical  testimouy  which 
was  introduced  is  utterly  unsatisfactory 
in  this  respect.  The  burden  ivsted  upon 
the  appellee  to  show  the  extent  of  her  in- 
juries. If  of  a  permanent  character,  she 
should  have  shown  it.  A  perusal  of  the 
evidence  creates  no  satisfactory  opinion 
upon  this  point,  and  leaves  the  matter  in 
entire  doubt.  The  physicians  who  testi- 
fied say  she  may  recover  entirely  and  she 
may  not. 

It  is  impossible  to  meastire  with  any- 
thing like  absolute  certainty  the  amount 
of  punitive  damages  proper  in  a  case,  or 
the  extent  of  some  of  the  elements  of  those 
which  are  compensatory.  The  opinion  of 
a  jurj'  has  been,  and  properlj^  no  doubt, 
regarded  as  the  best  means  of  even  a  fair 
approximation,  and  every  verdict  should 
be  treated p/7»ja  facie  as  the  result  of  hon- 
est judgment  upon  their  part.  They  are 
the  constitutional  triers  of  the  facts  of  a 
case,  and  courts  should  exercise  great  cau- 
tion in  interfering  with  their  verdicts. 
Litigants  must  not  be  left,  however,  to 
their  arbitrary  will,  and  be  without  rem- 
edy in  cases  where  verdicts  can  be  ac- 
counted for  only  upon  the  theory  that 
they  are  the  result  of  an  improper  sym- 
pathy, or  unreasonable  prejudice.  In  such 
cases  it  is  one  of  the  highest  duties  of  a 
courtto  interfere;  otherwisegreat  wrongs 
will  often  result,  and  the  party  be  remedi- 
less Whether  it  should  do  so  is  more 
easilj'  determinaljle  in  a  case  where  com- 
pensatory damages  only  are  allowable, 
because  they  in  part  admit  of  exact  meas- 
urement. In  such  cases,  this  court  has 
often  reversed  the  jury's  finding.  We  see 
no  reason  why  it  should  not  do  so  in  a 
case  like  this  one,  but  with  increased  cau- 
tion, perhaps. 

In  the  case  now  presented  there  was  no 
intentional  injury.  An  effort  was  made  to 
flag  the  coming  train,  and  those  in  charge 
of  it  attempted,  upon  notice  of  the  danger, 
to  stop  it.  Whether  these  efforts  were  of 
such  a  character  as  left  the  company  open 
to  the  charge  of  gross  neglect  was  a  ques- 
tion for  the  jury.  But  no  purpose  to  in- 
jure is  shown;  and,  while  it  was  properly 
a  question  for  the  determination  of  the 
jury  whether  the  compan3''8  agents  had 
not  been  guilty  of  such  neglect  as  merited 
punishment  by  way  of  punitive  damages, 
yet,  in  our  opinion,  a  case  was  not  pre- 
sented by  the  evidence 'for  a  verdict  of 
$10,000,  either  upon  the  score  of  punish- 
ment or  compensation,  or  both.  It  is  true 
that  railroad  companies,  as   to  their  pas- 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


483 


seiigers,  should  be  held  to  the  exercise  of 
the  utmost  care  mid  skill  which  prudent 
persons  would  bo  lik(>l.v  to  exercise  as  to 
themselves  under  the  like  circumstances, 
and  in  the  conduct  of  a  business  so  hazard- 
ous as  railroading;;  but  in  tlie  absence  of 
bad  motive  or  i)urpose  of  injury,  or  a  neg- 
lect so  wanton  as  to  demand  the  severest 
punishment,  and  where  it  is  utterly  uncer- 
tain what  the  result  of  an  injurj-  will  be,  a 
verdict  for  such  a  sum  as  has  been  award- 
ed to  the  appellee  strikes  one  at  first  blush 
as  the  result  of  either  prejudice  towards 
the  offending  party  or  an  undue  sympathy 
for  the  one  injured.  While  absolute  cer- 
tainty as  to  the  result  of  an  injury  should 
not  f)e  required,  yet  a  mere  conjecture,  or 
even   a  probability,  does  not  warrant  the 


giving-  of  damages  for  future  disability, 
which  may  never  be  realized.  The  futiire 
effect  of  the  injury  should  be  shown  with 
reasonable  certainty  to  authorize  dam- 
ages upon  the  score  of  permanent  injui-y. 
This  was  not  done  in  this  case.  The  evi- 
dence shows  that  the  appellee  is  as  likely 
to  entirely  recover,  and  perhaj)s  in  a  short 
period  of  time,  a^-  she  is  to  be  permanentlv 
affected  by  the  injury.  To  sustain  a  ver- 
dict like  this  one  under  such  circumstances 
would  often  result  in  the  grossest  injus- 
tice, and  its  existence  can  be  accounted  for 
only  upon  the  ground  that  the  jury  were 
swayed  by  prejudice,  or  an  improper  con- 
tndling  sympathy.  The  judgment  is 
therefore  reversed,  and  cause  remanded  for 
a  new  trial,  consistent  with   this   opinion. 


484 


EXCESSIVE  OK  INSUFFICIENT  DAMAGES. 


HETAN  V.  LAKE  SHORE  &  ^I.  S.  RY.  CO. 

(53  N.  W.  1094,  94  Mich.  146.) 

Supreme  Court  of  Michigan.    Dec.  22,  1892. 

Error  to  circuit  court,  Lenawee  county; 
Victor  H.  Laue,  Judge. 

Action  by  Frajili  A.  Ketau  against  the  Lalce 
Shore  &  Michigan  Southern  Railway  Coui- 
pauy  to  recover  damages  for  personal  in- 
juries. Judgment  was  entered  on  a  verdict 
for  $30,000  in  favor  of  plaintift",  and  defend- 
ant brings  error.    Affirmed. 

C.  E.  Weaver  (Geo.  C.  Greene  and  O.  G. 
Getzen-Danner,  of  counsel),  for  appellant. 
AVatts,  Bean  &  Smith  and  L.  R.  Pierson,  for 
apiK'llee. 

LONG,  J.  Plaintiff  recovered  a  judgment 
against  the  defendant  for  $30,000  damages 
for  negligent  injuries.  The  negligence  com- 
plained of  was  in  allowing  a  sidewalk  which 
crosses  defendant's  main  track,  and  extends 
along  the  side  of  a  public  street  in  the  vil- 
lage of  Hudson,  to  become  out  of  repair,  and 
dangerous  to  public  travel,  and  by  means  of 
which  the  plaintiff's  foot  was  caught  and 
fastened  in  said  walk  between  one  of  the 
planks  and  one  of  the  rails  of  defendant's 
track,  and  while  being  so  held  one  of  de- 
fendant's trains  of  cars  ran  over  him,  cutting 
off  both  his  feet.  The  main  track  of  de- 
fendant's road,  extending  easterly  and  west- 
erly, crosses  Main  street  in  that  village  at  a 
very  acute  angle.  A  sidewalk  6  feet  wide 
has  been  maintained  on  the  north  side  of 
Main  street  for  some  distance  for  over  30 
years  by  the  owners  of  the  abutting  prop- 
erty, and  by  the  village  at  the  street  cross- 
ings. The  defendant  company  has  main- 
tained this  walk  over  its  right  of  way  since 
186S.  In  that  year  the  village  council,  by 
resolution,  directed  the  building  of  a  side- 
walk on  the  north  side  of  Main  street  be- 
tween Tiffin  and  High  streets,  and  notified 
the  defendant  to  build  that  portion  across  its 
right  of  way,  which  it  did,  and  has  ever 
since  maintained  it.  The  planks  of  tlie  walk 
inside  the  railroad  tracks  ran  parallel  with 
the  rails.  Crossing  the  track  at  such  an 
acute  angle,  the  extreme  length  of  the  plank 
sidewalk  is  about  27  feet,  though  the  walk 
is  only  6  feet  wide.  The  planks  are  laid 
away  from  either  rail  from  2  to  2^4  inches, 
to  allow  the  flange  of  the  car  wheels  to  pass 
between  them  and  the  rails.  The  plank  in 
tlie  walk  next  the  south  rail  had  become 
split  on  the  west  end,  so  that  a  piece  had 
been  torn  out  about  14  inches  long,  leaving 
an  open  space  between  the  rail  and  the 
plank  3%  inches  wide  at  the  end,  extending 
14  inches  along  the  plank,  and  narrowing 
down  to  2  or  2Vj:  inches.  On  .January  3,  1891, 
the  plaintiff,  while  passing  along  this  walk, 
dropped  his  mitten  near  the  center  of  the 
planking  between  the  rails.  He  passed  be- 
yond the  rails  about  25  feet,  when,  missing 
the  mitten,  he  retraced  his  steps  to  get  it, 


and,  arriving  at  the  west  end  of  the  plank- 
ing, he  turned  and  saw  the  fast  mail  train 
of  defendant  approaching  from  the  west.  As 
he  turned  towards  the  west,  his  foot,  which 
was  resting  upon  the  south  rail  of  the  -de- 
fendant's track,  slipped  off,  and  was  caught 
in  tliis  space  left  by  the  broken  plank.  He 
tried  to  extricate  his  foot,  and,  finding  he 
could  not  do  so,  he  signaled  the  train  to 
stop.  The  train  was  then  at  or  near  what 
is  called  the  "Stone  Bridge,"  about  584  feet 
away,  and  running,  as  the  engineer  testifies, 
about  12  miles  an  hour,  but  gaining  speed. 
The  engineer,  as  soon  as  he  saw  the  plain- 
tiff was  caught,  made  every  possible  effort 
to  stop  the  train,  but  was  unable  to  do  so 
until  the  engine  and  tender  had  run  over  the 
plaintiff,  and  cut  off  the  left  foot  above  the 
ankle  and  crushed  the  right  one.  Both  feet 
were  subsequently  amputated;  the  left  one 
near  the  knee,  and  the  right  forward  of  the 
heel.  It  appears  that  the  plaintiff  saw  the 
train  coming  before  he  crossed  the  track  the 
first  time,  and  knew  what  train  it  was.  He 
was  accustomed  to  see  this  train  every  day. 
As  he  left  High  street  on  his  route  west  and 
reached  the  track,  he  could  see  west  upon 
the  track  several  hundred  feet  distant;  and 
as  he  crossed  over,  the  train  was  some  800 
feet  distant  from  the  crossing.  Plaintiff  was 
born  and  brought  up  in  the  village,  and  had 
lived  there  nearly  all  his  life,  and  had  been 
accustomed  to  pass  along  this  walk;  but  he 
says  he  had  never  noticed  its  condition  or 
this  defect.  When  stopping  and  turning  to 
look  at  the  approaching  train,  he  did  not  no- 
tice where  he  put  his  foot,  but  says  it  must 
have  been  on  the  rail,  and  from  there  slipped 
into  this  hole.  This  walk  between  the  rails 
had  been  twice  renewed,  the  last  time  about 
seven  years  before  the  accident.  The  testi- 
mony shows  that  the  hole  in  this  plank  had 
been  there  from  six  to  nine  months,  and  that 
several  other  persons,  prior  to  plaintiff's  in- 
jury, had  their  feet  caught  in  the  same  hole, 
and  some  of  them  had  considei'.able  difficulty 
in  extricating  them. 

The  declaration  charges  the  breach  of  duty 
as  follows:  "But  the  defendant,  disregard- 
ing its  said  duty  in  that  behalf,  on  the  last 
day  aforesaid,  and  for  a  long  time,  to  wit, - 
three  months  prior  thereto,  permitted  and 
allowed  said  sidewalk  where  it  crossed  the 
track  of  said  defendant  to  become  decayed, 
broken,  and  out  of  repair,  and  one  of  the 
planks  adjoining  and  next  to  tlie  south  rail 
of  said  track  to  become  split  and  broken, 
so  that  there  was  a  space  between  the  said 
rail  and  said  plank  large  enough  to  receive  a 
man's  shoe  and  foot,  and  into  which  a  per- 
son walking  along  said  walk  and  across  said 
track  was  liable  to  be  thrown  down,  and  the 
foot  fastened ;  and  which  said  hole  had  been 
left  by  defendant  to  remain  and  be  unrepair- 
ed and  in  a  dangerous  condition  for  a  space 
of  time,  to  wit,  sixty  days  prior  to  the  3d  of 
January,    1891," 

It  is  claimed  that  under  the  charter  of  the 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


485 


defendant  company  and  the  general  railroari 
laws  of  the  state  no  duty  is  cast  upon  the 
defendant  company  to  construct  or  maintain 
a  sidcAvalk  across  a  public  street,  either  in 
a  township,  yillage,  or  city.  While  it  is  true 
that  the  charter  of  the  defendant  company 
or  the  general  railroad  laws  of  the  state  do 
not  provide  in  express  terms  for  the  build- 
mg  of  a  sidewalk,  as  such,  across  any  pub- 
lic street,  yet  it  is  provided  by  the  defend- 
ant's charter  that  whenever  the  comjtany 
shall  construct  its  road  across  a  public  liigh- 
way  it  shall  restore  it  "to  its  former  state, 
or  in  a  sufficient  manner  not  necessarily  to 
impair  its  usefulness."  In  the  present  case, 
liowever,  we  need  not  discuss  or  consider 
that  question.  The  defendant  company,  act- 
ing vmder  the  notification  of  the  common 
council  of  the  village,  did  construct  the  cross- 
ing there,  and  for  years  has  assumed  the 
duty  of  keeping  it  in  repair.  By  this  act 
it  invited  people  to  pass  over  it,  and  it  has 
thus  become  its  duty  to  keep  it  in  a  reason- 
ably safe  condition  for  public  travel.  As 
was  said  in  Stewart  v.  Railroad  Co.,  89  Mich. 
315,  50  N.  W.  852:  "It  was  a  structure  built 
iipon  its  own  land,  and  by  its  nature  and 
use  was  a  continual  invitation  to  those  law- 
fully having  a  right  to  cross  from  one  side 
to  another  at  that  place  to  enter  upon  it  and 
cross  there;  and,  so  long  as  this  invitation 
thus  impliedly  given  to  such  persons  contin- 
ued, it  was  the  duty  of  the  defendant,  inde- 
peudentlj'  of  any  contract,  to  see  to  it  that 
it  was  safe  for  the  purposes  implied  by  the 
invitation."  This  principle  is  supported  by 
abundant  authority.  Nichols'  Adm'r  v.  Rail- 
road Co.,  83  Va.  99,  5  S.  E.  171.  The  same 
principle  was  involved  in  the  case  of  Cross 
V.  Railway  Co.,  69  Mich.  3G3,  37  N.  W.  361, 
and  the  cases  there  cited.  In  Spooner  v. 
Railroad  Co.,  115  N.  Y.  22,  21  N.  E.  696,  the 
court  held  the  defendant  company  liable  for 
the  injury  upon  the  ground  that  it  had  as- 
sumed the  duty  of  maintaining  the  crossing. 
2.  It  is  claimed  that  there  was  no  such 
defect  in  the  planking  between  the  rails  as 
to  make  the  defendant  liable.  The  action 
is  not  based  upon  the  faulty  construction  of 
the  crossing,  but  in  permitting  it  to  become 
defective,  in  that  a  hole  w^as  permitted  to 
remain  for  a  long  space  of  time  unrepaired. 
In  the  consti'uction  a  space  was  left  for  the 
flange  of  the  car  wheels  to  pass  along  the 
side  of  the  rail.  No  negligence  is  claimed 
on  that  ground,  but  that,  when  the  plank 
became  broken  and  split  oil  sufficient  to  ad- 
mit a  person's  foot,  it  was  not  reasonably 
safe.  It  was  admitted  on  the  trial  by  the 
track  hands  of  the  defendant  company  that, 
if  the  plank  had  been  examined,  the  defect 
would  readily  have  been  seen.  No  claim 
was  made  that  any  such  examination  was 
made  for  a  long  space  of  time,  and  no  par- 
ticular examination  for  the  last  six  years 
prior  to  the  injury,  except  such  as  could  be 
made  by  the  track  hands  passing  over  the 
crossing  on  a  hand   car.     Some  of  defend- 


ant's witnesses— and  especially  the  road  mas- 
ter—testified that  the  planking  next  the  rail 
would  be  nearly  used  up  by  the  passing 
trains  in  about  six  months,  and  yet  no  in- 
spection of  the  walk  is  claimed  to  have  been 
made,  except  that  above  stated  by  the  trade 
hands.  There  w^as  abundant  evidence  on  the 
trial  that  the  defect  existed,  and  that  the 
defendant  company,  by  the  least  care,  would 
have  discovered  it. 

Error  is  assigned  upon  the  refusal  of  the 
court  to  give  several  requests  to  charge. 
The  questions  so  raised  are  fully  disi)osed 
of  in  what  has  already  been  said.  The  court 
submitted  the  question  of  defendant's  neg- 
ligence to  the  jury  as  follows:  "Before  the 
plaintiff  is  entitled  to  a  verdict  at  your  hands 
here,  he  must  convince  you  by  a  preponder- 
ance of  the  evidence — you  must  be  convinced 
by  a  preponderance  of  the  evidence  in  the 
case — that  the  company  were  negligent  in  per- 
mitting this  walk  to  be  in  the  condition  whicli 
it  was  in  at  the  time  the  accident  occurred; 
that  that  negligence  was  the  direct  cause  of 
the  injury  which  the  plaintiff  claims  to  have 
suffered;  and  that  he,  himself,  the  plaintiff", 
was  not  negligent  in  such  a  way  as  to  con- 
tribute himself  to  the  injury  which  occurred. 
I  say  you  must  be  satisfied,  before  a  ver- 
dict can  be  rendered  for  the  plaintiff,  of  each 
and  all  of  these  propositions.  Yoiu-  first  in- 
quiry will  naturally  be  as  to  whether  the 
defendant  was  negligent  in  permitting  this 
walk  to  be  in  the  condition  in  which  it  was; 
and  upon  that  question  you  are  instructed 
that  the  companj^  are  bound  to  exercise  that 
degree  of  care  in  the  construction  and  oper- 
ation of  this  road  as  is  common  to  railway 
companies;  that  degree  of  care  which,  in 
view  of  the  circumstances,  would  be  requir- 
ed by  prudent  management.  If  this  defect, 
which  is  charged  in  the  plaintiff's  declaration, 
— and  which  is  only  that  the  company  per- 
mitted this  hole  to  be  there  next  to  the  rail, 
as  has  been  described,— if  this  defect  were 
such  a  one  as  that  ordinary  care  on  the  part 
of  the  railroad  company  would  not  discover 
it,  and  they  had  no  knowledge  of  it,  then 
there  would  not  be,  in  law,  negligence  such 
as  that  the  defendant  would  be  held  respon- 
sible in  this  action.  On  the  other  hand,  if 
it  was  such  a  defect,  if  the  defect  was  the 
cause  of  the  injury,  and  was  such  a  one  as 
that  by  careful  and  prudent  management  on 
the  part  of  the  company  it  should  have  been 
discovered,  then  there  was  negligence  in  the 
company  in  permitting  the  place  to  be  there, 
whether  they  had  actual  knowledge  or  not. 
The  railroad  company  are  not  insurers:  tlie 
law  does  not  require  that  they  be  insurers 
against  accidents,  or  against  injuries  being 
I'eceived  by  persons  and  individuals  who  may 
come  upon  their  property,  or  in  the  vicinity 
of  it.  There  is  danger  necessarily  incident  to 
the  business  of  managing  and  operating  a 
railroad  company,  which  all  persons  are 
bound  to  take  cognizance  of.  siich  as  are  nat- 
urally  incident  to   it;    but   the  law  requires 


486 


EXCESSIVE  on    IXST-FFICIENT  DAMAIJES. 


that,  as  I  have  said,  the  company  shall  have 
iu   mind    the   nature   of   the  business    which 
they  are  carrying  on,  and  shall  take  such  pre- 
cautious as  the  nature  of  it  aud  the  perils 
which  are  incident  to  it  would  seem   to  re- 
quire.    The     ordinary     care     and     prudence 
which   railway    mana.ueuieut   aud   experience 
has    generally    shown    are    proper.     If,    then, 
the  company  were  not  negligent  in  permitting 
this  defect  to  be  in  this  walk,  under  these  in- 
structions, they  are  not  responsible.     If  they 
^v,.i.e._if    they    failed    to    perform    the    duty 
wliich   I   have  stated   to   you   was  put  upon 
tliem  under  the  law,— and  failed  to  exercise 
that  degree  of   care   and   prudence   which   is 
common    in    prudent    railway    management, 
then  there  would  be  negligence."     This  was 
a  fair  submission  of  these  questions  to  the  ju- 
ry under  the  evidence  in  the  case. 
'3.  It  is  claimed  tliat  the  defendant  had  no 
notice  of  the  defect.     The  testimony  shows 
that    the    defect     had     existed     for    several 
months;    that  many  persons  had  noticed  it, 
and  several  persons,  prior  to  that  time,  had 
been  caught  in  the  same  way  at  that  place, 
and  in  the  same  hole.     This  testimony  was 
all  before  the  jury,  and  from  whicli  they  may 
well  have  found   that,   though  the  company 
had  no  actual  notice  of   the  defect,   it  was 
its  duty  to  have  known  it,  had  it  exercised 
any   care.     It   was  competent  to   show   that 
others  were  caught  in  the  same  hole  prior  to 
the   time  of  plaintiff's    injuries.     Lombar   v. 
Village  of  East   Tawas,  86  Mich.    14,   48   N. 
W.  947. 

4.  It  is  claimed  that  the  plaintiff  was  guilty 
of  contributory  negligence  in  returning  to  the 
crossing  in  face  of  the  approaching  train,  aud 
especially  as  he  testitied  that  he  did  not  look 
where  he  stepped.    Several  requests  to  charge 
were  submitted  to  the  court  upon  this  claim, 
and  refused.     The  court,   under  the  general 
charge,  left  that  as  a  question  of  fact  for  the 
determination  of  the  jury,  and,  as  we  think, 
very  properly.     It  appeared  that  at  tlie  time 
he    stepped    upon    the    track    the    train    was 
neai-ly  600  feet  away.     He  had  seen  the  train 
pass  there  every  day  for  years,  and  knew  the 
rate  of  speed  it  was  going.     He  would  un- 
doubtedly have  had  plenty  of  time  to  have 
passed  over  and  got  his  mitten,   had  it  not 
been  for  the  defect,  for  which  the  defendant 
was  solely  in  fault.     We  cannot  say  as  mat- 
ter of  law  that  his  conduct  was  such  as  to 
charge  him  with  negligence.     It  is  not  like 
the  case  of  one  who  attempts  to  cross  a  rail- 
road track  with  a  team  in  the  face  of  an  ap- 
proaching train.     A  very  careful  aud  prudent 
person  might  have  attempted  the  same  thing. 
It  was  not  a  peril  voluntarily  and  unneces- 
sarily assumed,   within  the   meaning   of   the 
cases  cited  by  counsel,  but  an  act  which  un- 
der the  testimony   the  jury   had   a  right  to 
pass   upon,    and   determine   whether    it    was 
negligent  or   not.     It   cannot   be   said   either 
that  as  matter  of  law  the  plaintiflf  was  negli- 
gent in  not   looking   where   he   stepped.     He 
had  a  right  to  believe  that  the  crossing  was 


safe.  He  had  passed  over  it  a  great  many 
times  and  had  not  had  his  attention  called 
to  this  defect.  It  was  a  way  provided  by 
the  defendant  for  him  and  others  of  the  pub- 
lic to  pass,  and  it  cannot  be  said  that  a 
person  traveling  along  a  way  must  at  all 
times  look  where  he  steps  or  be  charged  with 
being  negligent.  It  was  a  question  for  the 
jury. 

'j.  It  is  claimed  further  that  the  jury  wert> 
influenced  iu  awarding  so  large  a  verdict  by 
the   language  of   plaintiff's   counsel,    used    in 
the  closing  argument.     The  following  portion 
of  such  argument  is  selected,  and  error  as- 
signed upon  it:     "If  you  find,  gentlemen  of 
the  jury,   that  this  defendant  ought  to  pay 
this  boy,  I  hope  you  Avill  not  quibble  over  the 
amount.     The   good    Lord   knows   he   cannot 
have  too  much;    and  yet,  gentlemen,  as  has 
already  been  said  before  you,  Ave  do  not  want 
you   to  give  such  an  amount   that  it  might 
sliock  the  common  sense  of  the  community 
and  people  generally;    but  we  want  enough, 
and  it  is  for  your  judgment,  and  yours  only, 
as  to  how  much  it  shall  be.    Nobody  else  has 
a  right  to  interfere.     Ah,  gentlemen,  nobody 
else  will  interfere."     When  taken  in  connec- 
tion with  the  other  portion  of  the  argument, 
which  is  set  out  in  the  record,  w^e  think  coun- 
sel cannot  claim  that  anything  improper  was 
said,  even  if  the  portion  of  which  complaint 
is  made  can  be  said  to  be  improper.     Coun- 
sel, continuing  his  remarks  to  the  jury  up- 
on that  subject,  said:     "Disabuse  yourselves 
from  sympathy;  disabuse  youi-selves  from  any 
feeling  that  you  want  to  do  for  him,— wheth- 
er it  is  right  or  wrong,— if  it  is  possible  that 
you  have  any  such  feeling.     Come  down  to 
the  law  and  the  facts  as  the  court  will  give 
them    to  you.     Let   it   strike   where  it   will. 
If  it  will  leave  this  poor  boy  where  he  Is, 
under  the  evidence,  then  so  be  it.     But  dou'i 
give  him  a  pittance.     Don't  give  him  what, 
in  proportion  to  the  injury  he  has  suffered, 
would  be  no  compensation.     We  want  such 
an  amount  as  this  brother  right  here  will  rec- 
ognize as  a  fair  and  just  verdict,     (jive  such 
a  verdict  as' you  believe  Clement  E.  Weaver 
himself   would    give,    were   he   one   of   you." 
It   is  not  claimed   that   there   was  any   mis- 
statement of  fact  or  law,  and  certainly   the 
language  would  not  have  a  tendency  to  in- 
tiame  the  minds  of  the  jurors  against  the  coi"- 
poration.     They  were  told   to  disabuse  their 
minds  from  all  sympathy,  and  to  give  such 
an  amount  as  Avould  not  shoclc  the  common 
sense  of  men  generally;   and  to  this  was  add- 
ed the  request  to  give  such  a  verdict  as  the 
attorney    of    the    defendant    company    would 
give  if  he  were  on  the  jury.     It  is  true  thai 
there  may  have  been  an  appearance  of  frank- 
ness and  fairness  on  tlie  part  of  counsel,  used 
as  a  cover  while  he  was  attempting  to  arouse 
the  sympathy  of  the  jury  for  the  plaintiff's 
condition;    but  we  are  not  prepared  to  say 
that  the  language  was  so  far  prejudicial  as 
to  call  for  a  reversal  of  the  judgment.    Coun- 
sel   must   have    some    latitude    iu    the    argu- 


EXCESSIVE  OR  INSUFFICIENT  DAMAGES. 


48i 


ment  of  cases:  and,  while  we  have  reversed 
<ases  for  intemperate  language  of  counsel, 
where  it  plainly  appeared  that  it  was  used 
lor  the  purpose  of  arousing  the  passions  or 
prejudices  of  the  jury,  which  must  neces- 
sjirily  prejudice  the  opposite  party,  we  see 
nothing  in  these  remarks  which  should  call 
for  any  such  rule. 

(!.  We  have  examined  this  record,  and  have 
l)een  unable  to  find  any  error  in  the  proceed- 
ings. We  have  not  felt  called  upon  to  dis- 
<-uss  all  the  assignments  of  error,  but  have 
examined  them  with  that  care  which  the 
large  amount  involved  demands.  One  other 
point  demands  attention.  It  is  claimed  that 
the  amount  of  damages  is  excessive.  Not 
having  found  any  error  in  the  proceedings,  or 
anything  improper  upon  the  trial  tending  to 
prejudice  the  defendant's  rights  or  inflame 
the  jury,  and  thereby  prejudice  them  against 
the  defendant,  we  cannot  disturb  the  verdict 


on  the  ground  solely  that  it  is  greater  in 
amount  than  we  think  should  have  been 
given.  Hunn  v.  Railroad  Co.,  78  Mich.  529, 
44  N.  W.  502;  Richmond  v.  Railwav  Co.. 
87  Mich.  392,  49  N.  W.  621;  Stuyvesant  v. 
Wilcox  (Mich.)  .52  N.  W.  467.  I  am  not  pre- 
pared to  say,  however,  that  cases  might  not 
arise  where,  even  under  our  former  rulings, 
we  would  not  be  justified  in  considering  that 
question.  If  the  verdict  was  such  as  to 
shock  the  common  sense  and  judgment  of 
mankind,  it  might  call  for  a  different  rule, 
and  the  court  might  be  justified  in  overt^'-n- 
ing  it.  But  that  is  not  so  in  this  case. 
Tlie  jury  have  taken  into  considerarion  tiic 
pain  and  suffering  this  plaintiff  has  endured, 
and  the  loss  to  him  for  the  reuwiuder  of  his 
years  of  both  feet.  It  may  be  large,  but  the 
jury  alone  had  the  right  to  determine  it.  The 
judgment  must  be  affirmed,  with  costs.  The 
other  justices  concurred. 


WEST   PUBLISHINQ  CO.,  PRINTERS  AND  STEREOTVPER8,  ST.  PAUL,  MINN. 


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